              This opinion is subject to revision before final
                   publication in the Pacific Reporter.

                               2013 UT 39

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH
                          ———————
                      UNION PACIFIC RAILROAD,
                             Petitioner,
                                    v.
  UTAH DEPARTMENT OF TRANSPORTATION; UTAH PUBLIC SERVICE
     COMMISSION; ANDERSON GENEVA DEVELOPMENT, INC.,
                  and TOWN OF VINEYARD,
                       Respondents.
                      ———————
                       No. 20110326
                      Filed July 9, 2013
                      ———————
             Original Proceeding in this Court
                      ———————
                        Attorneys:
            Reha Kamas, Salt Lake City, for petitioner
     Brent A Burnett, Asst. Att‟y Gen., for respondent UDOT
 Troy L. Booher, Christopher L. Stout, Salt Lake City, Dennis M.
Astill, Sandy, for respondent Anderson Geneva Development, Inc.
        David L. Church, Salt Lake City, for respondent
                      Town of Vineyard
                        ———————
     JUSTICE LEE authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
           JUSTICE DURHAM, and JUSTICE PARRISH joined.
                        ———————

 JUSTICE LEE, opinion of the Court:
  ¶1 This case arises out of the classification of a public railroad
crossing by the Utah Department of Transportation (UDOT). The
classification was upheld on review by the Public Service Com-
mission. We affirm, upholding the Commission‟s determination
that UDOT correctly classified the crossing as public in the ab-
sence of any formal abandonment or evidence indicating that the
crossing is a new road that never became public.
                UNION PACIFIC RAILROAD v. UDOT
                       Opinion of the Court

                                 I
  ¶2 In 2008, the Utah Transit Authority (UTA) announced con-
struction of a high-speed commuter rail line that would run from
Provo to downtown Salt Lake City. As announced, this line was to
operate in a portion of a rail corridor occupied by Union Pacific
Railroad and would increase train traffic from eight to twenty
trains per day to over sixty trains per day. Because construction of
the new commuter rail line could potentially alter certain cross-
ings of Union Pacific‟s line, representatives from UTA and UDOT
evaluated each identified crossing to “ensure that final design
meets all applicable safety requirements.” As a result of this eval-
uation, UTA and UDOT decided to eliminate a crossing at “Gene-
va Road, 4000 North” in the town of Vineyard.
  ¶3 It soon became clear, however, that the reference to “Gene-
va Road, 4000 North” was incorrect and that UTA and UDOT ac-
tually intended to close a crossing that involves 400 North and
Vineyard Road. Once the Town of Vineyard and the owner of
land adjacent to the crossing (Anderson Geneva) realized this,
they petitioned the Commission to review UDOT‟s initial deter-
mination to close the crossing. As part of this petition, Anderson
Geneva and Vineyard provided documents and information to
UDOT about the crossing. UDOT had previously determined that
the crossing was private because applicable engineering standards
indicated that a public crossing is one that is approached from
both directions by public roads and because 400 North was not
passable eastward by the public due to a closed and locked gate.
UDOT, however, reversed that determination based on the new
information from Anderson Geneva and Vineyard and classified
the crossing as public. Apparently satisfied with this result, An-
derson Geneva asked the Commission to dismiss its petition. In a
subsequent letter, however, UDOT reiterated the crossing‟s public
classification but ordered the crossing‟s temporary closure for
safety reasons.
  ¶4 The parties were unhappy with UDOT‟s letter for different
reasons. Anderson Geneva agreed with the public determination
but objected to the temporary closure of the crossing. Union Pacif-
ic, on the other hand, agreed that the crossing should be closed
but believed that it should be classified as private. Accordingly,
Union Pacific filed a petition with the Commission challenging
UDOT‟s public classification. Anderson Geneva, after successfully

                                 2
                         Cite as: 2013 UT 39
                       Opinion of the Court

moving to intervene,1 opposed Union Pacific‟s petition and cross-
petitioned to challenge UDOT‟s decision to temporarily close the
crossing.
  ¶5 The history of the crossing and the land surrounding it was
the central focus of the hearing before the Commission on these
petitions. Its early history is undisputed. Union Pacific‟s predeces-
sor acquired by deed a right of way for a rail corridor in 1881. At
some point before 1942, a road (400 North) was established cross-
ing that right of way. At the hearing, the parties stipulated that
this road and its crossing were public by 1942. Then, in 1942, Utah
County passed a resolution quitclaiming all the land located with-
in a 1,500-acre area for the construction of a steel plant, eventually
known as Geneva Steel and now owned by Anderson Geneva. As
part of this resolution, the County vacated its claim to the portions
of 400 North that were contained within the boundaries of the
proposed steel plant. The Commission found, on the testimony of
four witnesses, that the resolution did not vacate the portions of
400 North west of the track or the crossing of the track itself.
Based on this evidence, the Commission determined that the 400
North crossing remained public after the 1942 resolution. Neither
party contests that determination.
  ¶6 The Commission further determined that nothing occurred
in the decades following the 1942 resolution that changed the
public character of the crossing. None of the parties disputed the
fact that no formal vacatur or abandonment proceeding occurred
after 1942. And though the Commission found that “at least a por-
tion of the crossing . . . presently lie[s] over the land vacated by
the 1942 Resolution,” it determined that the crossing remained
public despite a possible shift in the road‟s location. In so finding,
the Commission identified evidence supporting two possible ex-
planations for the road‟s alleged shift.
  ¶7 First, evidence suggested that the crossing could have been
reconfigured in the early 1970s for safety reasons. Specifically, the
original crossing angle could have been altered from something
less than a 90-degree angle “to something closer to a 90-degree
angle to the tracks.” But the Commission lacked conclusive evi-


 1The Town of Vineyard also successfully intervened and joins in
Anderson Geneva‟s briefing before this court.

                                  3
                UNION PACIFIC RAILROAD v. UDOT
                       Opinion of the Court

dence of which entities—Union Pacific, Utah County, Geneva
Steel, and/or UDOT—were involved in possible discussions
about the reconfiguration and of “whether the County was in-
volved in the reconfiguration or whether it was solely reconfig-
ured by the steel plant and [Union Pacific].”
  ¶8 Second, the Commission postulated that any change in the
road‟s location could have been the result of “the actual shifting of
the road” over time. Witnesses testified that “it would not be un-
common for the road to have shifted over 80 years or so.” But the
Commission noted that it “lack[ed] evidence showing precisely
where the road actually was at the time of the 1942 Resolution.”
  ¶9 The possible relocation of the crossing notwithstanding, the
lack of any formal attempt to abandon or vacate the crossing con-
vinced the Commission that the crossing remained public. The
presence of a locked gate and the absence of actual public use or
maintenance were, according to the Commission, thus irrelevant.
Further, the Commission determined that the engineering stand-
ards that supported UDOT‟s earlier private classification were no
barrier to UDOT‟s new public classification. Though these stand-
ards suggest that a crossing like the 400 North crossing is not pub-
lic because only one approach to it is public, these standards also
recognize exceptions to this general rule.
  ¶10 Accordingly, because the crossing had never been formally
abandoned, because UDOT‟s own guidelines allow this kind of
road to be classified as public, and because numerous public enti-
ties and databases had considered and listed the crossing as pub-
lic for nearly four decades, the Commission found that there was
“substantial evidence the crossing is public.”
  ¶11 After losing on its petition before the Commission, Union
Pacific filed a request for rehearing, which included a new argu-
ment: “UDOT does not have jurisdiction over the crossing . . . be-
cause 400 North Street in Vineyard, Utah, is not a public road at
the point where it crosses Union Pacific‟s tracks.” This request
was denied, however, and Union Pacific sought review in this
court of the Commission‟s decision upholding UDOT‟s public
classification.




                                 4
                        Cite as: 2013 UT 39
                       Opinion of the Court

                                 II
  ¶12 Before we consider the merits of this case, we first address
the applicable standard of review. The parties2 offer competing
formulations of the governing standard. Union Pacific frames the
issue as a jurisdictional question of law. It identifies the question
before us as “whether a crossing is private and thus not subject to
the jurisdiction of UDOT,” and argues that the Commission‟s de-
termination “that the public right of way moved with the road on-
to Union Pacific‟s private right of way” was a “conclusion of law
[that] should be” reviewed for correctness. Anderson Geneva, on
the other hand, frames the issue as “[w]hether the Commission
acted unreasonably in affirming UDOT‟s classification of the
crossing as public” and asserts that this is a mixed question in-
volving the application of law to facts—a question on which the
Commission‟s determination merits deference.
  ¶13 We see the matter Anderson Geneva‟s way. As a body
“created by and deriv[ing] its powers and duties from statute,”
UDOT has not only the regulatory powers expressly granted to it,
but also those “which are clearly implied as necessary to the dis-
charge of the duties and responsibilities imposed upon it.” Basin
Flying Serv. v. Pub. Serv. Comm‟n, 531 P.2d 1303, 1305 (Utah 1975).
Under its governing statute, UDOT has “the power to determine
and prescribe the manner . . . and the terms of installation, opera-
tion, maintenance, use and protection . . . of each crossing of a
public road or highway by a railroad or street railroad . . . and to
alter or abolish any such crossing, [and] to restrict the use of such
crossings.” UTAH CODE § 54-4-15(2). Implicit in this grant of au-
thority over public railroad crossings is the authority to decide
which crossings are public. In that sense, UDOT has the statutory
authority to decide, at least initially, its own jurisdiction; it un-
doubtedly has the jurisdiction to determine whether it possesses
jurisdiction.
  ¶14 Neither side disputes this. Union Pacific, for instance, nev-
er challenged UDOT‟s jurisdiction by, for example, claiming that


 2  The Commission, UDOT, and Vineyard are all respondents in
this case, but only Anderson Geneva submitted responsive brief-
ing. We accordingly refer to Union Pacific and Anderson Geneva
as the parties in interest.

                                 5
                UNION PACIFIC RAILROAD v. UDOT
                        Opinion of the Court

it lacked authority to decide which railroad crossings are public.
Instead, it argues only that the crossing should have been classi-
fied as private and thus not subject to UDOT regulation. This is
not really a challenge to UDOT‟s jurisdiction. It is an argument
challenging the propriety of UDOT‟s exercise of jurisdiction
(whether UDOT correctly classified the crossing as public). And
under the circumstances of this case, the answer to that question
turns on the application of the law to the facts—whether a par-
ticular crossing that was never formally abandoned but may have
moved partially onto private land falls within the definition of a
public crossing. The standard of review applicable to mixed ques-
tions in the agency context, however, requires some explanation.
  ¶15 As we recently indicated in Murray v. Labor Commission, we
review agency determinations of mixed questions under the
standard framework established for review of trial court deci-
sions. 2013 UT 38, ¶ 23, __ P.3d __. Under this approach, “our re-
view [of mixed questions] is sometimes deferential and sometimes
not.” Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
¶ 42, __ P.3d __. The level of deference we give an agency deter-
mination of a mixed question depends on:
       (1) the degree of variety and complexity in the facts to
       which the legal rule is to be applied; (2) the degree to
       which a trial court‟s application of the legal rule relies
       on facts observed by the trial judge, such as a wit-
       ness‟s appearance and demeanor, relevant to the ap-
       plication of the law that cannot be adequately reflect-
       ed in the record available to appellate courts; and (3)
       other policy reasons that weigh for or against grant-
       ing discretion to trial courts.
Id. (internal quotation marks omitted). Ultimately, we defer to an
agency determination of a mixed question when it is “not „law-
like‟ because it does not lend itself to consistent resolution by a
uniform body of appellate precedent,” and/or it “is „fact-like‟ be-
cause the [agency] is in a superior position to decide it.” Id.
  ¶16 Only if we determine that the mixed question involves a
statutory delegation of “discretion” to the agency will we depart
from this framework and review the action for “an abuse of dis-
cretion.” See Murray, 2013 UT 38, ¶ 30; see UTAH CODE § 63G-4-
403(4)(h) (stating that an appellate court shall grant relief if “the


                                  6
                         Cite as: 2013 UT 39
                        Opinion of the Court

agency action is . . . an abuse of the discretion delegated to the
agency by statute”). The abuse of discretion standard, however,
extends only to truly discretionary decisions. A discretionary de-
cision involves “a question with a range of „acceptable‟ answers,
some better than others” from which “the agency . . . is free to
choose . . . without regard to what an appellate court thinks is the
„best‟ answer.” Murray, 2013 UT 38, ¶ 30. These decisions are often
driven by multiple factors that influence what is ultimately an eq-
uitable decision. See Supernova Media, Inc. v. Shannon‟s Rainbow,
LLC, 2013 UT 7, ¶ 19, 297 P.3d 599. In contrast, discretionary pow-
er should not be confused with “an administrative grant to ad-
minister a statute,” as “all agencies are necessarily granted author-
ity by statute to administer portions of the code.” Murray, 2013 UT
38, ¶ 29 (internal quotation marks omitted). Though a statute may
delegate certain powers and authority to an agency, only a delega-
tion of actual discretion warrants the abuse of discretion standard.
See id.
  ¶17 The PSC‟s determination on review here is not such a dis-
cretionary decision. PSC is statutorily vested with “power and ju-
risdiction to supervise and regulate every public utility in this
state, and to supervise all of the business of every such public util-
ity . . . , and to do all things . . . which are necessary or convenient
in the exercise of such power and jurisdiction,” UTAH CODE § 54-4-
1, and with “exclusive jurisdiction [over] the resolution of any
dispute” related to the establishment and regulation of grade
crossings, id. § 54-4-15(4)(a). But these are not grants of discretion.
They are grants of authority.
  ¶18 PSC was tasked with deciding whether the facts presented
fit within the bounds of an applicable statute. That question has
one correct answer. It does not implicate a choice among a range
of many acceptable options, see Murray, 2013 UT 38, ¶ 30, or mul-
tiple factors that influence an equitable decision, see Supernova
Media, 2013 UT 7, ¶ 19—hallmarks of a discretionary decision. We
accordingly review the PSC‟s mixed determination under a stand-
ard of review dictated by the factors set forth in In re Adoption of
Baby B.
  ¶19 Under that formulation, we conclude that the PSC‟s deci-
sion to uphold UDOT‟s public classification both “is fact-like” and
is “not law-like” and is thus subject to a deferential standard of
review. See In re Adoption of Baby B., 2012 UT 35, ¶ 42. “The partic-

                                   7
                 UNION PACIFIC RAILROAD v. UDOT
                        Opinion of the Court

ular facts and circumstances” surrounding a crossing‟s public
character, “are likely to be so complex and varying that no rule
adequately addressing the relevance of all these facts can be
spelled out,” particularly when changes in that character may
have taken place over many years. Id. ¶ 43 (internal quotation
marks omitted). Moreover, because much of the detail about the
crossing‟s history was contained in witness memories and recol-
lections of past dealings, PSC was in a better position to resolve
this issue than we are now. See id. (stating that a question is “fact-
like” if resolution of it “would often be affected by [a trial judge‟s]
observation of a competing „witness‟s appearance and demeanor‟
on matters „that cannot be adequately reflected in the record
available to appellate courts‟” (citation omitted)). In these ways,
PSC‟s determination in this case is much like a determination of
negligence in a personal injury suit arising out of an automobile
accident—a determination that we identified in In re Adoption of
Baby B. as typically warranting deferential review. See id.
  ¶20 Conversely, the question in this case is unlike questions
that typically receive non-deferential review, such as questions
about what qualifies as a reasonable search or seizure. See id. ¶ 44.
It does not lend itself “to consistent resolution by uniform prece-
dent” and will not create a “consistent rule” upon which “the
general public ought to be able to rely.” Id.
 ¶21 We must accordingly review PSC‟s decision with a healthy
dose of deference, paying heed to the reasons we afford it such
deference.
                                  III
  ¶22 Whether the Commission‟s decision upholding UDOT‟s
public classification can stand turns on the evidence that was be-
fore it and the evidence that it would have needed to reverse
UDOT‟s determination. As the party challenging UDOT‟s public
classification before the Commission, Union Pacific bore the bur-
den of persuading the Commission that UDOT‟s factual determi-
nation that the 400 North crossing is public was “not supported
by substantial evidence.” Utah Chapter of the Sierra Club v. Bd. of
Oil, Gas, & Mining, 2012 UT 73, ¶ 31, 289 P.3d 558 (internal quota-
tion marks omitted). It could have met that burden by showing
either (1) that the 400 North crossing was abandoned/vacated and
no longer public; or (2) that 400 North, as it stands today, is a new


                                  8
                        Cite as: 2013 UT 39
                       Opinion of the Court

road that never became a public right of way. It did neither. Thus,
we uphold the Commission‟s determination that UDOT‟s public
classification is supported by substantial evidence.
                                 A
   ¶23 The Commission would have had to overturn UDOT‟s
public classification if Union Pacific had shown that the public
abandoned its right to use the crossing. Under Utah law, however,
once a road becomes public, it remains public until it is formally
abandoned or vacated. UTAH CODE § 72-5-105(1) (“All public
highways, streets, or roads once established shall continue to be
highways, streets, or roads until formally abandoned or vacated
. . . .”).3 By statute, any such vacatur or abandonment must occur
“by written order, resolution, or ordinance resolution of a high-
way authority having jurisdiction or by court decree.” Id. This
statute “make[s] no allowance for” anything but formal aban-
donment. State v. Harvey Real Estate, 2002 UT 107, ¶ 17, 57 P.3d
1088.
  ¶24 Having stipulated that the 400 North crossing was or be-
came public in 1942, Union Pacific had the burden of presenting
evidence of formal abandonment or vacatur after that date. It
failed to carry that burden. The only evidence presented to the
Commission on this question established conclusively that neither
the 1942 Resolution nor any subsequent formal act abandoned the
400 North crossing. That was fatal to Union Pacific. Having failed
to carry its burden of establishing formal abandonment or vaca-
tur, Union Pacific could not succeed in establishing the crossing‟s
non-public nature by demonstrating—as it sought to do—that the
crossing was no longer being used consistently by the public.




 3  See Culbertson v. Bd. of Cnty. Comm‟rs, 2001 UT 108, ¶ 42, 44
P.3d 642 (“Section 72-5-105 plainly provides that a public highway
remains a highway until the proper authorities order it „aban-
doned or vacated.‟”), overruled on other grounds by Madsen v.
JPMorgan Chase Bank, N.A., 2012 UT 51, 296 P.3d 671 (per curiam);
Clark v. Erekson, 341 P.2d 424, 426 (Utah 1959) (citing the predeces-
sor to Utah Code section 72-5-105 and stating that a “public high-
way can only be abandoned by an order of the county commis-
sioners or other competent authority”).

                                 9
                UNION PACIFIC RAILROAD v. UDOT
                       Opinion of the Court

                                  B
  ¶25 Thus, Union Pacific‟s only viable means of attacking
UDOT‟s public classification is to show that the 400 North cross-
ing, as it stands today, is not the same crossing that has been pub-
lic since at least 1942. Union Pacific pressed this in its rehearing
request to the Commission and advances it again before this court
today. Specifically, Union Pacific argues that the crossing as it
stands “became private when the road that crosses Union Pacific‟s
right of way near 400 North Street was relocated off of the public
right of way in the 1970‟s.”4 We hold, however, that Union Pacific
failed to produce enough evidence to support that theory below.
Specifically, we find that significant evidentiary gaps exist regard-
ing (1) whether and how much the road moved since 1942, and (2)
what caused the crossing to move and which of the interested en-
tities—if any—were involved in reconfiguring the crossing after it
became public.
  ¶26 First, the evidence presented to the Commission did not
conclusively establish that the crossing moved at all—let alone
enough to change its character from public to private. As to the
exact location of the 1942 crossing, the Commission stated that it


 4  Anderson Geneva contends that Union Pacific did not preserve
this argument below and so cannot raise it on review. It is true
that Union Pacific did not make this argument in its pre-hearing
filings or at the hearing itself. Union Pacific did, however, make
the argument in its request for rehearing before the Commission.
Specifically, it argued that “UDOT does not have jurisdiction over
the crossing because 400 North is not a „public road‟ at the point
where it crosses the railroad tracks” and that 400 North‟s “current
placement . . . determines whether UDOT has jurisdiction over the
crossing.” This is enough to preserve the issue for review. See
UTAH CODE § 54-7-15(1), (2)(a)-(b) (stating that parties wishing to
challenge the Commission‟s action must apply for rehearing and
that “[a]n applicant may not urge or rely on any ground not set
forth in the application in an appeal to any court”). It is of no mat-
ter that Union Pacific, in its briefing to this court, cites cases in
support of this argument that it has never before cited in this mat-
ter. See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828 (“[W]e
routinely consider new authority relevant to issues that have
properly been preserved . . . .”).

                                 10
                         Cite as: 2013 UT 39
                       Opinion of the Court

lacked evidence “showing precisely where the road actually was
at the time of the 1942 Resolution” and that “[t]he evidence is also
not clear as to the width of the 400 North road remaining after the
1942 resolution.” Given these findings, the Commission could not
credibly determine that the crossing as it exists is not in the exact
position it inhabited in 1942.
  ¶27 As Union Pacific indicates, the Commission did seem to ac-
cept that some movement occurred when it found that “the road
and Crossing . . . are either entirely or partly within the land that
was vacated” and that the crossing “lie[s] almost completely off
the public [right of way].” But Union Pacific had to do more than
simply show that the crossing moved. “[T]he public cannot ac-
quire a right by use to pass over a tract of land generally, but only
in a certain . . . way,” Lindsay Land & Livestock Co. v. Churnos, 285
P. 646, 649 (Utah 1929), but Utah law has long allowed changes to
a right of way as long as those changes do not diminish its useful-
ness, frustrate its purposes, or burden the dominant or servient
estate,5 see Hubble v. Cache Cnty. Drainage Dist. No. 3, 259 P.2d 893,
896 (Utah 1953) (“[I]t is clear that the needs of society and the con-
comitant policy of the law favor changes and improvements for
the benefit of the dominant estate so long as the manifest intent of
the parties does not disallow the changes and the burden to the
servient tenement is not increased.”).6 Thus, a public right of way


 5  This rule does not apply if the easement is expressly created
and its boundaries defined by a document or agreement. See
Wykoff v. Barton, 646 P.2d 756, 758 (Utah 1982) (“[A] right-of-way
founded on a deed or grant is limited to the uses and extent fixed
by the instrument.”); see also RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 4.8 (2000) (excepting from the general rule situations
where ”the location and dimensions [of a right of way] are deter-
mined by [an] instrument or circumstances surrounding [the] cre-
ation of [the right of way]”). In this case, however, no document
was presented showing the exact location of the crossing when it
became public. Indeed, the parties are not even certain when the
crossing became public. They simply accept that it was public by
1942.
 6  See also Richards v. Pines Ranch, Inc., 559 P.2d 948, 951 (Utah
1977) (“[O]nce the character of [a prescriptive] easement has been
fixed no material change or enlargement of the right acquired can

                                 11
                UNION PACIFIC RAILROAD v. UDOT
                       Opinion of the Court

may be changed or moved as long as its “practical identity” is
preserved. See Lindsay Land & Livestock Co., 285 P. at 649 (noting
that, for establishment of a public right of way, “slight deviations
from the common way to avoid encroachments, obstacles, or ob-
structions upon the road” are not enough to interrupt the public‟s
use as long as the “practical identity of the road [is] preserved”).
  ¶28 Further, we have held that when the public acquires by use
a right of way over private land, it also acquires the right to make
“necessary improvements and repairs . . . so as to keep it in a suit-
able condition.” Jeremy v. Bertagnole, 116 P.2d 420, 423 (Utah 1941)
(internal quotation marks omitted); Blonquist v. Blonquist, 516 P.2d
343, 344 (Utah 1973) (stating that a public right of way acquired by
use includes not only the “beaten path” but also “that which was
reasonably safe and convenient for the use to which the road was
put”). Moreover, by statute, the scope of a public right of way “is
that which is reasonable and necessary to ensure safe travel ac-
cording to the facts and circumstances.” UTAH CODE § 72-5-104(8);
see Conatser v. Johnson, 2008 UT 48, ¶ 21, 194 P.3d 897 (“[A]n ease-
ment holder has the right to make incidental uses beyond the ex-
press easement and does not exceed the easement‟s scope if those
uses are made in a reasonable manner and they do not cause un-
necessary injury to the servient owners.” (internal quotation
marks omitted)). The Commission heard evidence that the cross-
ing may have been reconfigured in the early 1970s for safety rea-
sons. If this reconfiguration actually occurred and consisted only
of changes that were necessary for safe travel, the changes would
not affect the right of way‟s public status.
  ¶29 Because the Commission was not presented with evidence
of the 1942 crossing‟s exact location, it could not determine
whether any movement since then was significant enough to
change the public character of the crossing or that any changes
went beyond those “necessary” to maintain safe travel on the
right of way. Thus, the Commission could not conclude that such



be made, if thereby a greater burden is placed on the servient es-
tate.”); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.8(3)
(2000) (“[T]he owner of the servient estate is entitled to make rea-
sonable changes in the location or dimensions of an easement . . .
to permit normal use or development of the servient estate.”).

                                 12
                        Cite as: 2013 UT 39
                       Opinion of the Court

movement created a new crossing that had to be independently
dedicated to public use.
  ¶30 This failing is compounded by Union Pacific‟s inability to
establish how the road moved and who moved it (assuming that
it did move). The Commission postulated that the road either
moved over time or was reconfigured in the early 1970s for safety.
If it was the former, the Commission could hardly determine that
such undirected and incremental changes extinguished a right of
way that existed for almost a century. See Severance v. Patterson,
370 S.W.3d 705, 724 (Tex. 2012) (discussing a comparable principle
from riparian law and stating that an easement defined by water-
line is not extinguished by “gradual and nearly imperceptible
movement of coastal boundaries”). And if it was the latter, then
the Commission could not decide whether the relocation extin-
guished the public right of way until it knew who participated in
or agreed to the change. It is well-settled, after all, that parties
with interest in a right of way—the servient and the dominant es-
tate holders—can, by mutual agreement, alter the boundaries of
the easement. Lyman Grazing Ass‟n v. Smith, 473 P.2d 905, 907
(Utah 1970) (“[W]hen an easement has once been established, its
location may be changed by an executed oral agreement between
the owner of the servient estate and the owner of the dominant
estate. . . . The consent of the owner of the servient estate to a
change in the location of an easement may be implied from acqui-
escence.” (internal quotation marks omitted)). In this case, the
Commission stated that it lacked evidence “to determine whether
the County was involved in the reconfiguration or whether it was
solely reconfigured by the steel plant and [Union Pacific].” Be-
cause the Commission could not rule out the possibility that the
County and Union Pacific reached an agreement about the possi-
ble 1970s reconfiguration, it could not determine that the recon-
figuration extinguished the public nature of the crossing.
  ¶31 In sum, Union Pacific failed to present enough and the
right type of evidence to support its arguments before the Com-
mission. Because Union Pacific did not come forward with evi-
dence showing that the 400 North crossing was formally vacated
or abandoned, its only hope was to show that the 400 North cross-
ing was a new crossing that never became public. Evidentiary
mysteries about how much the road moved and why and who



                                13
             UNION PACIFIC RAILROAD v. UDOT
                   Opinion of the Court

moved it, however, were grounds for the Commission to rule
against Union Pacific on that question.
                           ——————




                            14
