Columns

Whose leaves are they? 2015.12.02

By DAVID GREEN

I must be one of the last rakers in Morenci. Long after most people have moved their leaves to the curb and had them taken away, the one large maple tree in our back yard is just starting to let loose of its leaves. It's like this every year.

For a while it looked like it was going to be one of those unpleasant years of raking in the snow, but that soon melted away and the leaves were dry again and ready to blow around. That's what happened on breezy Thanksgiving Day. I would get a nice pile built up before a really strong gust would blow them back into place. In the end I won and pulled them away on a tarp to become garden mulch.

At this point we have a fairly clean yard until a really big wind brings a new set in from somewhere else in the neighborhood.

When I was rounding up the leaves on Thanksgiving, one of my neighbors stepped outside with a dinner guest and inquired whether I would be collecting my leaves from her yard, also. Hmmm, I didn't think that was the way it worked, but funny she should mention that when a day later I came across an old By The Way column from 1985 when the same topic had come up.

I explained that my wife was from the big city and if she wanted to see a lot of trees back when she lived in New York, she would have to take the bus to the Bronx Zoo or ride the subway to Central Park. 

New York City isn't really that bare of trees at all. There are lots and lots of parks filled with trees and most residential streets have them, too. It seems as though the ginko tree is everywhere. 

But with Colleen's move to Morenci, it wasn't trees she was unfamiliar with, but instead it was houses surrounded by yards that contained trees. The NYC ginkos are growing out of the sidewalks. In the Bronx, families don't typically own a rake.

What I wrote 30 years ago is that "her knowledge of falling leaves is rather limited due to the geography of her formative years." I came to that realization when we were out walking and she asked whose responsibility it was to clean up leaves from a tree in Yard X that had fallen from a branch hanging over into Yard Y. Do the leaves belong to the owner of the tree?

I didn't have an answer for her. I had been away at college, then living in apartments in Saginaw, then in the country in Maine, and finally in the city, in Portland, Oregon. When I wrote the column, I was living above the Observer office so I still had no leaves to mess with.

I knew what I had to do: I wrote to my friend, Jim, in Milwaukee who worked at the law firm of Michael, Best & Friedrich. They employed 97 attorneys and charged $135 an hour for advice. This was big time stuff, although I expected Jim to advise me for free, which he did.

Jim said that a number of cases have established the principle "that a tree and its products are the sole property of him whose land it is situated, and that its location and ownership should be determined by the position of the trunk rather than by the branches above it."

I assume this referred to wood and fruit, but it sounded clear: Leaves blowing onto property from someone else's tree belong to the owner of the tree. So maybe Colleen had a good question after all. Maybe I still have some raking to do across the fence. If my neighbor starts screaming from her porch "damnum absque injuria," I’ll know it's time to get to work.

What does this hot-shot lawyer who works in a building with an indoor racquetball court and a carpeted shower room know about raking leaves? He wasn't always in that questionable profession. In fact, he once taught algebra at nearby Deerfield High School.

Jim knows plenty, and here is his approach: "I let them blow and then rake late. Some come back into my yard when the wind shifts, but in the end I think I come out ahead." He's right about that. We still had quite a few leaves in our side yard, but it's been a windy month and they disappeared before the rake came out.

When I was in high school, with our big lawn on Cawley Road, I just wanted to dig a trench around the house and burn them off. Somehow my parents never went along with that plan.