Elder v. Nephi City

2007 UT 46
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Nan Elder, individually, and Nos. 20050510
as personal representative 20050576
of The Estate of Shelly Elder, 20050581
and on behalf of Amy Elder,
Jeremy Elder, Chelsey Elder,
and Ryan Elder, minor children,
Plaintiff and Appellant,
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, and F I L E D
John Does I-X,
Defendants and Appellees. June 12, 2007
---
Fourth District, Nephi Dep’t
The Honorable Lynn W. Davis
No. 990600065
Attorneys: Allen K. Young, Provo, Jonah Orlofsky, Chicago,
Illinois, for plaintiffs
Benson L. Hathaway, Stephen W. Geary, Salt Lake City,
for defendant Nephi City
Jeffrey Devashrayee, Casey K. McGarvey, Salt Lake
City, for defendant Union Pacific Railroad
---
NEHRING, Justice:
BACKGROUND
¶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.

Nos. 20050510,
20050576, 20050581 2
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

1 Utah Code Ann. § 41-6-19 (1998).
2 The federal government, for example, assumed primary
responsibility for promulgating safety regulations at railroad
grade crossings under the provisions of the Federal Railroad
Safety Act of 1970, Pub. L. No. 91-458, 84 Stat. 971. In its
form in effect at the time of the accident, the Act delegated to
the United States Secretary of Transportation the authority to
implement regulations establishing effective national grade
safety standards. 49 U.S.C.S. § 20103 (1998).
Nos. 20050510,
3 20050576, 20050581
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
¶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

3 The dimensions of the property right created by these
rights-of-way have spawned considerable litigation. See Great N.
Ry. Co. v. United States, 315 U.S. 262 (1942); W. Union Tel. Co.
v. Pa. R.R. Co., 195 U.S. 540 (1904); N. Pac. Ry. Co. v.
Townsend, 190 U.S. 267 (1903); New Mexico v. U.S. Trust Co., 172
U.S. 171 (1898); Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967);
Idaho v. Or. Short Line R.R. Co., 617 F. Supp. 207, 212 (D. Idaho
1985). The outcomes of these cases--that a railroad right-of-way
is a creature that occupies a unique place among property
interests somewhere between traditional easements and fee
interests--do not concern us here.
Nos. 20050510,
20050576, 20050581 4
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.”

Nos. 20050510,
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¶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

Nos. 20050510,
20050576, 20050581 6
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

Nos. 20050510,
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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 co-
owners 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”).
¶18 No party has directed us to, nor have we been able
through our own efforts to discover, any case in which a
plaintiff has successfully imposed an unwanted prescriptive
property interest on a defendant for the purpose of creating a
duty. Mrs. Elder and the Railroad have cited to us a more than
ample collection of prescriptive easement cases. Common to them
all is the identity of the parties and the nature of the dispute:
a contest between competing claimants to real property.
¶19 As a general proposition, we are wary of permitting a
party having no claim to an interest in land to command rulings
affecting another’s title solely to establish the existence of a
legal duty in a tort action. See Andrus v. Bagley, 775 P.2d 934,
935 (Utah 1989) (holding that because plaintiff “had no interest,
he had no standing to bring the action” to quiet title in a
nontort action). Of particular concern to us is Mrs. Elder’s
endeavor undertaken here to impose an easement on the Railroad by
prescription. A person who has met all of the requirements for
obtaining an interest in land by operation of law through

Nos. 20050510,
20050576, 20050581 8
prescription or adverse possession may nevertheless decline to
perfect his claim. We have acknowledged as much in our
description of a prescriptive easement as an interest in land
“created when the party claiming the prescriptive easement can
prove that ‘use of another’s land was open, continuous, and
adverse under a claim of right for a period of 20 years.’” Nyman
v. Anchor Dev., L.L.C., 2003 UT 27, ¶ 18, 73 P.3d 357 (quoting
Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998)).
¶20 Standing to bring a quiet title action to perfect title
is limited to parties who could acquire an interest in the
property created by the court’s judgment or decree. See Andrus,
775 P.2d at 935; Pender v. Bird, 224 P.2d 1057, 1060 (Utah 1950);
Besnilian v. Wilkinson, 25 P.3d 187, 189 (Nev. 2001); Bowles v.
Pro Indiviso, Inc., 973 P.2d 142, 146 (Idaho 1999). Because we
see no reason why these well-established standing requirements
should not extend to claims by prescriptive easement, we decline
to extend our rules to permit a party to create a property
interest in a third party for the purpose of exposing that party
to liability for damages. Although a circumstance may arise in
which we might find appropriate the creation of a prescriptive
right by proxy, we do not face that circumstance here.
¶21 The reach of this holding does not extend to bar all
contests where a duty is alleged to flow from the ownership or
control of land and the purported tortfeasor disclaims the
requisite ownership or control to establish a duty. Although
a challenge to ownership or control where the disputed property
interest is founded on a written instrument may have the
hallmarks of a collateral quiet title action, important
distinctions between these contests and those involving
prescriptive easement or adverse possession are evident to us and
lead us to express no opinion concerning the identity of persons
eligible to assert standing.
II. THE PRESENCE OF MATERIAL FACTS RELATING TO NEPHI’S CONTROL
OVER THE SITE OF THE TREES BARS SUMMARY JUDGMENT ON THE ISSUE OF
WHETHER IT OWED A DUTY TO MR. ELDER
A. Nephi’s Common-Law Duty
¶22 Municipalities owe a duty of reasonable care to
ordinary people, and this duty extends to travelers upon their
highways. This court affirmed the existence of this common-law
duty early in Utah’s statehood when we stated: “[I]t was the
primary duty of the city to exercise reasonable care to maintain
the streets in a reasonably safe condition and to guard against
injury to persons and property by removing or making reasonably
safe any dangerous objects in the streets. This duty was

Nos. 20050510,
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constant, continuing, and nondelegable.” Morris v. Salt Lake
City, 101 P. 373, 377 (Utah 1909).
¶23 The scope of a governmental entity’s common-law duty to
persons utilizing roadways under its control extends beyond the
boundaries of the thoroughfare. See Ingram v. Salt Lake City,
733 P.2d 126, 127 (Utah 1987) (“Streets from side to side,
including the sidewalks and all area between, are primarily for
public use.”). The Morris case itself confirms this, as it
concerned the duty to safeguard a home from trees located
adjacent to a street whose roots had been cut in the course of
installing a sidewalk. 101 P. at 377.
¶24 A governmental entity does not undertake a duty to
remove vegetation from private land that may obstruct the vision
of motorists utilizing its roadways. Nor does a private party
bear a common-law duty to keep roadways free of visual
obstructions caused by vegetation growing on his land. Our court
of appeals correctly noted these principles of law in Jones v.
Bountiful City Corp., 834 P.2d 556, 560 (Utah Ct. App. 1992),
cited with approval in 19 Eugene McQuillan, The Law of Municipal
Corporations § 54:112, at 373 (3d ed. 2004). The common-law duty
of a governmental entity to safeguard those who travel its roads
may, however, extend to visual hazards located on its land
outside the bounds of the roadway itself. See Town of Belleair
v. Taylor, 425 So. 2d 669, 670-71 (Fla. Dist. Ct. App. 1983). In
view of this legal principle, the question of ownership and
control of the land occupied by the trees elbows aside virtually
every other common-law analytical consideration. We turn, then,
to assess Nephi’s ownership and control of the trees and the
relationship of its ownership and control to a duty owed
Mr. Elder.
¶25 The district court ruled as a matter of law that Nephi
did not, despite its ownership of the stand of trees, control
them to the degree that its fee interest gave rise to a duty.
Nephi’s ownership interest and right to control were, in the
district court’s view, eclipsed by that of the irrigation company
that owned an easement along the 300 West corridor where it
maintained an irrigation ditch. It is undisputed that the trees
sprouted from the embankment of the ditch.
¶26 The record before the district court contains little in
the way of useful information from which one can gauge the scope
of rights enjoyed by the irrigation company by reason of its
easement. The flaw in the district court’s ruling is its
apparent discounting of the importance of this information. A
fair reading of the district court’s ruling, and of Nephi’s
arguments to this court, leaves us convinced that the fact of the

Nos. 20050510,
20050576, 20050581 10
irrigation company’s easement and not its scope accounted for the
district court’s conclusion that Nephi owed no duty to remove
visual obstructions at the crossing where Mr. Elder lost his
life.
¶27 Not every easement relieves the holder of the servient
estate from duties associated with land ownership and control.
When a court must identify the locus of that ownership and
control for the purpose of assigning duty, it will not do to
apply a categorical rule that duty attaches to the owner of the
easement and does not adhere to the fee owner. Rather, the scope
of an easement holder’s duty is dependent on the nature and scope
of the permitted use granted by the easement. These duties may,
as in the case of irrigation easements, be further defined by
statute. See Utah Code Ann. § 73-1-8 (1998).
¶28 In the motion for summary judgment setting, a fee
holder makes no legal headway by establishing the uncontested
fact that another party owned an easement over the fee holder’s
land. Such a fact, standing alone, does nothing to shift the fee
holder’s tort duties to the easement holder. Thus, in this case,
Nephi had to do more than merely show that the irrigation company
may have retained an easement over the canal and adjacent trees
in order to require Mrs. Elder to present any fact evidence that
the scope of the irrigation company’s easement did not include a
duty to attend to the trees. The burden remained squarely on
Nephi to advance factual support for the proposition that
responsibility for the trees accompanied the irrigation company’s
easement.
¶29 Here, the record before us is largely barren of facts
from which a court could conclude that the irrigation company had
taken on whatever duties befell Nephi as the fee owner of the
tree site. The presence or absence of a line of trees may be of
interest to an irrigation canal operator, but it may not. It
would certainly be reasonable for a canal operator to ignore a
stand of trees that poses no threat to the normal flow of water
in the canal. The allocation of rights and duties to the land
occupied by the stand of trees is fact-dependent and those facts
are simply not before us, nor were they before the district
court. We therefore vacate the district court’s grant of summary
judgment in favor of Nephi on the issue of common-law duty.
B. Nephi’s Statutory Duty
¶30 Utah law requires owners of real property to remove
vegetation “which, by obstructing the view of any operator,

4 The Utah Legislature has changed this statute since the
time of Mr. Elder’s accident. The current version found at Utah
Code section 41-6a-216 features apparently inappreciable
differences in language. We do not decide the meaning of this
language but merely highlight the change.
5 The Jones court examined a 1988 version of the statute
identical to the language at issue in this case.
Nos. 20050510,
11 20050576, 20050581
constitutes a traffic hazard.” Utah Code Ann. § 41-6-19 (1998).4
Mrs. Elder contends that, as the owner of the property where the
line of trees was located, Nephi was subject to this obligation.
The district court ruled that as a matter of law the statute did
not contribute to the creation of a legal duty in Nephi to remove
the trees. We agree.
¶31 Our court of appeals conducted a comprehensive review
of section 41-6-19’s application in Jones v. Bountiful City
Corp., 834 P.2d 556 (Utah Ct. App. 1992).5 That case concerned a
collision between a motorcycle and an automobile at an
intersection. According to the injured motorcyclist, rose bushes
growing on private property impaired the ability to see oncoming
traffic as he approached the intersection. He contended that
Bountiful owed him a statutory duty to remove the rose bushes.
The court of appeals read section 41-6-19 as creating a “three
part mechanism.” Id. at 559. Subsection (1) imposes a duty on
property owners to remove obstructing foliage. The statute
conditions this duty, however, on the receipt of notice from the
department of transportation or any local authority based on an
engineering and traffic investigation that the vegetation has
created a traffic hazard. Subsection (2) of section 41-6-19,
like subsection (1), imposes a duty. In this case, it is a duty
assigned to the entity which has conducted an investigation and
determined that a traffic hazard exists to notify the owner to
perform his subsection (1) duty. Third, the statute exposes the
property owner to a class C misdemeanor in the event he fails to
remove the obstruction within ten days.
¶32 Because Bountiful did not own the property upon which
the rose bushes were situated, the court of appeals concluded
that Bountiful owed the injured motorcyclist no duty to remove
the obstruction. Moreover, the court noted that the statute
imposed no duty on Bountiful to conduct an inspection, but rather
burdened the city with a more limited responsibility to order the
removal of the rose bushes if, after conducting an investigation,
the city concluded that they constituted a traffic hazard. We
find the court of appeals’ reasoning in Jones to be sound and
moreover to be amenable to extension to this case.

6 Although the governing agency has modified this rule
slightly since 1998, the particular responsibilities enumerated
here exist in the present-day rule.
Nos. 20050510,
20050576, 20050581 12
¶33 Of course, while Bountiful did not own the property
upon which the rose bushes were growing, Nephi did own the land
where the trees grew. Nephi, however, occupies the same position
as it would had it not owned the property where the trees were
located. The city’s statutory obligation to remove the trees
would have been triggered by receipt of notice from the
department of transportation or a local authority--presumably
including itself--that an investigation had deemed the trees to
be a traffic hazard.
¶34 The statute, as the court of appeals correctly observed
in Jones, does not impose a duty on Nephi, or any other
governmental entity, to conduct an investigation of potential
visual obstructions at the intersection of Center Street and the
railroad tracks. In this respect, section 41-6-19 imposes a
lesser duty than that created by common law, which would appear
to require a property owner to exercise reasonable care to
monitor the risks associated with vegetation growing on his
property.
¶35 That Nephi should be treated for the purposes of
evaluating its statutory duty as though it did not own the
property upon which the trees were located is reinforced by the
fact, made clear in subsection (2), that other governmental
entities besides municipal agencies may be assigned the task to
inspect for visual obstructions within the scope of their
responsibilities. Most tellingly, the department of
transportation is required by rule to have a program to identify
railway crossing improvement needs. See Utah Admin. Code r. 930-
5-7(1) (1998).6 The department of transportation is also
required to oversee a diagnostic/surveillance review team
composed of members from railway companies, the department of
transportation, and local government agencies. Included in the
review team’s tasks is the responsibility to “[s]pecif[y] removal
of trees, brush and foliage from the highway and railway rights-
of-way and private properties to provide better sight distance
for motor vehicles.” Id. r. 930-5-7(2)(b)(vi).
¶36 Under this regulatory scheme, it is clear the statute
did not intend to assign exclusive responsibility to
municipalities, like Nephi, to monitor railroad crossings within
their boundaries for visual obstructions. We accordingly affirm

Nos. 20050510,
13 20050576, 20050581
the district court’s determination that Nephi owed no statutory
duty to Mr. Elder.
CONCLUSION
¶37 Because we conclude the Railroad did not have a duty to
ensure the trees did not impair motorists’ view of approaching
trains, we hold that it was not negligent in failing to remove
the trees. We affirm the district court’s summary dismissal of
Mrs. Elder’s wrongful death action with respect to the Railroad.
¶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.
---
¶39 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Judge Orme concur in Justice Nehring’s
opinion.
¶40 Having disqualified herself, Chief Justice Durham does
not participate herein; Court of Appeals Judge Gregory K. Orme
sat.