Nan Elder, individually, and as personal representative of The Estate of Shelly Elder, and on behalf of Amy Elder, et al. v. Nephi City, by and through Mayor Chad Brough, City Councilmen Mike Jones, Darren Peterson, Richard Paxman, Brent Bowles, and Jim Wilkey, Union Pacific Railroad Company

1 Mr. Shelley Elder was killed on a Union Pacific
Railroad railway track in Nephi City, Utah, when the dump truck
he was driving was struck by a ninety-one-car freight train.
Mr. Elder's widow, Mrs. Nan Elder, contends that her husband's
death was caused by the negligence of the Railroad and Nephi. According to Mrs. Elder, her husband would not have lost his life
had a line of trees located parallel to the railroad tracks not
obscured his vision of the train. The trees were situated on
land owned by Nephi. Nephi did not operate the train. The
Railroad owned the tracks and operated the train, but had no
recorded property interest in the ground where the trees were
located.

2 The district court summarily dismissed Mrs. Elder's
wrongful death claim. It ruled that as a matter of law neither
Nephi nor the Railroad owed a duty to Mr. Elder to assure that
the trees did not impair motorists' ability to observe
approaching trains. We decline Mrs. Elder's invitation to impose
upon the Railroad a property interest and agree with the district
court's conclusion that the Railroad was under no duty to remove
the trees. We furthermore agree with the district court's
determination that Nephi owed no statutory duty, but conclude the
court erred when it held Nephi owed no common-law duty to
Mr. Elder.

ANALYSIS

3 As Mrs. Elder acknowledges, this appeal turns solely on
whether either Nephi, the Railroad, or both owed Mr. Elder a duty
to attend to the row of trees beginning some 170 feet south of a
road crossing in Nephi and extending approximately 30 feet along
the west side of the Railroad's tracks. The question of whether
a duty exists is one of law, which we will review for
correctness. Salt Lake County v. W. Dairymen Coop., Inc., 2002
UT 39, 16, 48 P.3d 910 (citing Weber v. Springville City, 725
P.2d 1360, 1363 (Utah 1986)).

4 The fate of the duty allegedly owed to Mr. Elder turns
on the answers to two questions: Did either Nephi or the
Railroad have the legal authority to exercise control over the
trees? Assuming that either defendant had a right to control the
trees, was that defendant's relationship to the operation of the
railroad or the motoring public of such a quality as to require
it to be aware of the potential hazards posed by the trees
obstructing the vision of motorists at the railway crossing?

5 The answer to each question is found in the facts. The
presence or absence of the right to control the trees can be
traced to two sources: the nature of the interest, if any, Nephi
or the Railroad had in the land occupied by the trees; or a
statute or regulation conferring such a right. The district
court ruled that the record contained no disputed material facts
sufficient to support a claim that the Railroad had an interest
in the land occupied by the trees. The district court also summarily ruled that although Nephi held the fee interest to the
land bearing the trees, actual control over the trees was vested
in the Nephi Irrigation Company, notably not a party to this
litigation, which held an easement over Nephi's property to
operate an irrigation canal. Finally, the district court turned
away Mrs. Elder's contention that Utah law requiring property
owners to remove vegetation that creates a traffic hazard1
imposed a duty on Nephi. We will explore each of Mrs. Elder's
claims of duty in turn.

I. THE DISTRICT COURT PROPERLY DETERMINED THAT THE RAILROAD HAD
NO CONTROL OVER THE TREES AND THEREFORE OWED NO DUTY TO MR. ELDER

I. THE DISTRICT COURT PROPERLY DETERMINED THAT THE RAILROAD HAD
NO CONTROL OVER THE TREES AND THEREFORE OWED NO DUTY TO MR. ELDER
6 In this quest to affix a duty to the Railroad,
Mrs. Elder looks solely to sources related to property interests
and not to statute.2 The Railroad owns a right-of-way over land
located at what would, if it existed, be the site of 300 West
Street in Nephi. In Utah's unique system of street
designation--confounding to the uninitiated but a handy tool in
the hands of those conversant with its nomenclature--a street
bearing an "east" or "west" name runs north and south.
Mr. Elder's truck was struck by a northbound freight train that
was passing over tracks placed on the Railroad's right-of-way
over the 300 West corridor.

7 Oddly, the Railroad concedes that no recorded evidence
exists to indicate it owns its claimed right-of-way through
Nephi. Rather, the Railroad contends it acquired its right to
maintain tracks and operate trains through Nephi through a
prescriptive easement. That a railway company would rely on the
operation of law to acquire a legal right to land over which it
places its rails would appear to be a risky and unusual course of
action. It would also seem unnecessary in light of our nation's
historical practice of making generous grants of property
interests to railroad companies to induce them to tame the
western frontier with the steel conduit of civilization. See
Moon v. Salt Lake County, 76 P. 222, 225 (Utah 1904) (describing railroad grants as measures designed to "induce capital to engage
in the building of such roads over the public domain, and thereby
reclaim and render inhabitable and productive a section of
country hitherto almost valueless–-little more than a barren
waste"). The first and most significant congressional measure
granting public land to railway companies bore a title that spoke
directly to the ambitions of a nation committed to the cause of
Manifest Destiny: "An Act to aid in the Construction of a
Railroad and Telegraph Line from the Missouri River to the
Pacific Ocean, and to secure to the Government the Use of the
same for Postal, Military, and Other Purposes." Pacific Railroad
Act, ch. 120, 12 Stat. 489, 489 (1862).

8 In 1875 Congress enacted supplemental legislation that
granted to railroad companies a "right of way through the public
lands of the United States." Railroad Right of Ways Acts, ch.
152, 18 Stat. 482, 482 (1875). Mrs. Elder contends that the
Railroad acquired its right-of-way pursuant to this statute.3 If
the Railroad did, its right-of-way, presumably accompanied by the
right to exercise control over it, would reach land up to 100
feet west of its central line as authorized by Congress. This
land would encompass the offending trees. We conclude, however,
that the ground over which the Railroad's tracks pass within the
boundaries of Nephi was, at the time the tracks were laid, no
longer public land and thus not subject to transfer from the
United States to the Railroad's predecessor under the 1875 Act.

9 Three years before right-of-way acquisition became
possible under the 1875 Act, the United States conveyed by patent
the land now occupied by Nephi. The original patent did not name
Nephi as the grantee, but rather was issued to "Jacob G. Bigler,
County Judge of Juab County, Utah Territory, in Trust for the
Several use and benefits of the inhabitants of the Townsite of
Nephi."

10 Congress authorized this patent through the Federal
Townsite Act of 1867, ch. 176, 14 Stat. 541, which reflected a
congressional desire to encourage settlement of frontier lands by
providing a means to guarantee legal title to settlers who chose
to occupy lands that had become or were destined to become
townsites. The 1867 Act delegated to county probate judges, like
Judge Bigler, in unincorporated towns, like Nephi, responsibility
to hold the land subject to the federal patent in trust and to
distribute it according to rules and regulations prescribed by
the state or territory. Id. at 541. Utah law required probate
judges to oversee the distribution of lands consistent with the
aims of the Federal Townsite Act and adjudicate controversies
between vying land claimants. See Stringfellow v. Cain, 99 U.S.
610, 612 (1879); William Wirt Blume & Elizabeth Gasper Brown,
Territorial Courts and Law, 39 Mich. L. Rev. 39, 63 (1962)
("Organization of these [probate] courts was left to the
territorial governments with freedom to provide local election or
appointment of the judges.").

11 With the issuance of the patent to Judge Bigler, the
land within the city limits of Nephi, including the railway
crossing where Mr. Elder was killed, left the inventory of public
lands held by the United States. We conclude, therefore, that
when the United States issued its patent to Judge Bigler, it
surrendered its ability to convey a railroad right-of-way over
the same land pursuant to the 1875 Act. The original section of
tracks occupying the 300 West corridor through Nephi were laid in
1879. That the United States and the Railroad's predecessor
believed the land where the tracks were to be laid was not
subject to the 1875 Act finds support in the absence of two
sources: any documented evidence of a congressional grant of a
right-of-way or any other formal conveyance of a property
interest in the 300 West corridor to provide legal authority for
laying the tracks. Thus the Railroad's claim that it acquired
its right to lay tracks and operate trains through Nephi by
prescription--one that has not been challenged by Nephi, the fee
owner of the property--appears to us to be the only plausible
theory under which the Railroad can establish a legal claim to
the use of the land underlying the tracks.

12 As noted above, it is not lost on us that it was hardly
prudent for the Railroad's predecessor to fail to formalize in
some form the acquisition of its right-of-way through Nephi,
especially given its right to acquire rights-of-way over private
land by condemnation. Mrs. Elder seizes on this seemingly
inexplicable oversight by contending that the land did not lose
its character as public when the United States conveyed it to
Judge Bigler. According to her interpretation, the land became
private only when it was conveyed from Judge Bigler to the early residents of Nephi. While this does not explain why no evidence
survives reflecting a grant of a right-of-way along the 300 West
corridor, Mrs. Elder holds this interpretation out as a more
likely explanation than a scenario featuring the Railroad's
forgetfulness in perfecting an interest in the land over which it
intended to lay tracks and operate trains.

13 We believe that the pivotal analytical consideration in
ascertaining the character of lands as public is a practical one:
whether the United States retained the authority to grant a
right-of-way over the land. By arguing that the land must be
treated as public because it was not held in the names of parties
who were demonstrably private Mrs. Elder avoids confronting the
fundamental issue of whether the United States could have
provided the Railroad with a right-of-way through Nephi had the
Railroad sought one.

14 The United States Supreme Court has characterized as
"well settled" the definition of public lands as lands "‘subject
to sale or other disposal under general laws.'" Union Pac. R.R.
Co. v. Harris, 215 U.S. 386, 388 (1910) (quoting Newhall v.
Sanger, 92 U.S. 761, 763 (1876)); see also Nelson v. N. Pac. R.R.
Co., 188 U.S. 108, 129-34 (1903); Minnesota v. Hitchcock, 185
U.S. 373, 391 (1902); Barker v. Harvey, 181 U.S. 481, 490 (1901);
Whitney v. Taylor, 158 U.S. 85, 90-93 (1895); Bardon v. N. Pac.
R.R. Co., 145 U.S. 535, 540 (1892). By conveying to Judge Bigler
the patent to public lands within the borders of Nephi, the
United States placed the disposition of those lands beyond its
power to sell or dispose of under general laws.

15 Mrs. Elder insists that the conveyance to Judge Bigler
was conditional and carried with it a reversionary interest in
the United States that would be triggered if, for example, Nephi
never came into being as a city. As we have previously
explained, the Federal Townsite Act authorizing the grant to
Judge Bigler contains no mechanism to accomplish a return of the
patented lands to the United States nor suggests an intention to
have made the patent conditional. Even if we were to read such a
reversionary interest into the statute, the United States was
clearly foreclosed from selling or disposing of the property
subject to the patent under general laws and the property
therefore did not satisfy the definition of public lands.

16 The Railroad contends that it has acquired a
prescriptive easement over at least that portion of the 300 West
corridor occupied by its tracks. Mrs. Elder accepts this claim,
but asserts that if the Railroad's property interest were
obtained through prescription, then the dimensions of the
easement and the duties attached to it would extend to lands encompassing the trees. As a plaintiff in a wrongful death
action striving to establish that the Railroad owed Mr. Elder a
duty to remove the trees, Mrs. Elder has of necessity become a
champion for the Railroad's property rights. Her quest presents
us with the perplexing question of whether and to what extent a
plaintiff may in the course of prosecuting a tort claim seek to
impose upon an unwilling defendant a property interest based on
principles of prescription or adverse possession.

17 From a plaintiff's point of view, establishing a
property interest in the defendant may be critical to making out
a case that the plaintiff was owed a duty. That is particularly
true here. It is important to recall that the only duty
Mrs. Elder seeks to impose on the Railroad is the duty to remove
the trees. She does not contend that the Railroad owed Mr. Elder
a duty to reduce the risk at the crossing where he was killed by
taking any other measures. By limiting the scope of her claim
against the Railroad in this way, Mrs. Elder has inflated the
importance of establishing some basis upon which she could
persuasively demonstrate that the Railroad owned or controlled
the land where the trees were situated. She has chosen such a
course because a court would be unlikely to impose a duty upon a
party who has no authority to dictate the fate of a hazard like
the trees. See Simpson v. Gibson, 164 Ill. App. 147, 149-50
(Ill. App. Ct. 1911) (finding the city liable for removing trees
obstructing a roadway when the plaintiff and the city were coowners
of trees as "trees growing upon a boundary line are the
joint property of the adjoining owners and for their destruction
an action of trespass will lie").

* * *

¶38 Although we conclude Nephi was under no statutory
obligation to remove the trees, we vacate the district court’s
grant of summary judgment on the issue of common-law duty and
remand for proceedings consistent with this opinion.