4. JAMES R. & CHARLENE K. HASENYAGER
176 IBLA 252
Decided December 18, 2008

5. The Case
• This case involves the
section line between
sections 6 & 7
• T36S R3E SLM Utah

6. Township 35 S Range 3 E SLM Utah

7. Background
• The NE corner and N ¼ of
sec. 7 T 35 S R 3 E of the
Salt Lake Meridian were
originally surveyed by
William Lewman, U.S.
Deputy Surveyor, between
September 2, 1893, and
April 11,1894, when he
surveyed the exterior and
subdivisional lines of the
township.
• The Surveyor General
approved the survey on
November 4, 1896.

11. Resurveys
• In 1979 The Forest Service
conducts an administrative
survey of the southern half of
sec. 7.
• The Forest Service surveyors
determines that the NE corner
and N ¼ corner of sec 7 are
lost.
• They are reestablished by
proportionate measurement

12. 1980 Resurvey
• From September 23, 1980, to June
2, 1983 Gail E. Reynolds, a BLM
Supervisory Cadastral Surveyor,
dependently resurveyed certain
exterior and subdivisional lines of
the township for the purpose of
“defining the boundary of coal
lease areas and identifying
boundary lines of natural resource
lands adjacent to private land.”

13. • Reynolds accepts the existing monuments set by the Forest
Service, deeming it to be “a careful and faithful
reestablishment of the position of the original corner”

14. Survey Approved Nov. 7, 1983

15. The Challenge
• The Hasenyagers own
four parcels of private
land within sec. 7
• They acquired these
parcels by warranty
deeds, dated June 26,
2000, Apr. 19, 2002,
and Mar. 28, 2005

16. • The Hasenyagers filed a
formal protest challenging
BLM’s 1983 dependent
resurvey of the NE corner
and N ¼ corner of sec. 7.

17. • They objected to the positions
of the corners established by
the 1983 dependent resurvey
based on the Forest Service’s
conclusion that the corners
were lost and thus properly
reestablished by proportionate
measurement. They asserted
instead that, in using
proportionate measurement,
BLM had used “an
inappropriate” methodology.”

18. BLM’s Response
• Conducted a field investigation
May 2-5, 2005
• The BLM had been unable to
confirm the existence of
“reliable and provable physical
evidence supporting new
locations for the corners.
• Concluded the Hasenyagers
had failed to carry their burden
to show that a corrective
resurvey was justified.
• The BLM dismissed the protest

19. • The BLM reconsiders the case
and conducts a new field
investigation December 5, and
8, 2005
• Larry Judd, Cadastral Surveyor,
reports finding the original
survey monument for the NE
corner, but not the original
monument or bearing tree for
the N ¼ corner.
December 2005 Investigation

20. The Report
• “The corner of sections 5, 6, 7
and 8 was found monumented
with a sandstone 22x14x5
inches (record 24x12x4 inches)
lying loose on a steep slope,
plainly marked with 5 grooves on
one edge and 5 very dim
grooves on a face of the stone.
The stone was cracked through
the middle, and broke in two
pieces upon handling…

21. The Report Continued
• No mound of stone was found,
and there is no indication that
the stone has moved much, if
any, on the steep slope. The
corner position matches
reasonably well with record plat
information to the north and
south, and fits reasonably well
with topographic calls to the
south and east. I see no reason
to doubt the authenticity or found
location of this corner and would
accept it where found.”

22. • Judd recommends using the
newly found section corner to
reestablish the N ¼ corner
• The Chief Cadastral Surveyor
for Utah notified Hasenyager
that the recovered monument
had been erroneously
overlooked by the 1983
resurvey, noting that this
situation presents justification for
a Corrective Resurvey.

23. New Investigation
• The BLM conducted a
further field investigation on
July 25-27, 2006, again
finding the original
monument for the NE corner
and also recovering the
original survey monument
for the N ¼ cor. of sec. 7.

24. The Decision?
• In January 2007, the State
Director makes a decision to
uphold the BLM’s 1983
dependent resurvey of the
NE corner and N ¼ corner
of sec. 7, declining to
undertake a corrective
resurvey of the two corners.
• The Hasenyagers appealed

25. State Directors Decision
• In the decision the State
Director acknowledged that
the that BLM had accepted
the two monuments
recovered as the original
monuments set by Lewman
in 1896

26. The Reasoning
• In upholding the 1983
dependent resurvey, the
State Director sought to
avoid injuring the bona fide
rights of all who “relied on
the monumentation and
boundaries established by
the Forest Service and
accepted by BLM” since
1983.

27. • The Decision also explained
that the resurvey had been
performed in accordance
with BLM’s Survey Manual.

28. The Argument
• In declining to adopt the
original monument as the NE
corner of sec. 7, BLM relied
on the IBLA decision in
Longview Fibre Co., 135
IBLA 170

29. • The case concerns
three corners along a
line running north
from the SE corner of
sec. 32 to the NE
corner of sec. 29.
The controversy
focuses on the E¼
and NE corners of
sec. 32 and the E¼
corner of sec. 29.
T~4~N R~2~W
Willamette Meridian Oregon
Longview Fibre

30. • The case concerns
three corners along a
line running north
from the SE corner of
sec. 32 to the NE
corner of sec. 29.
The controversy
focuses on the E¼
and NE corners of
sec. 32 and the E¼
corner of sec. 29.
Longview Fibre
T~4~N R~2~W
Willamette Meridian Oregon

31. • The case concerns
three corners along a
line running north
from the SE corner of
sec. 32 to the NE
corner of sec. 29.
The controversy
focuses on the E¼
and NE corners of
sec. 32 and the E¼
corner of sec. 29.
Longview Fibre
T~4~N R~2~W
Willamette Meridian Oregon

32. • The case concerns
three corners along a
line running north
from the SE corner of
sec. 32 to the NE
corner of sec. 29.
The controversy
focuses on the E¼
and NE corners of
sec. 32 and the E¼
corner of sec. 29.
Longview Fibre
T~4~N R~2~W
Willamette Meridian Oregon

33. • The case concerns
three corners along a
line running north
from the SE corner of
sec. 32 to the NE
corner of sec. 29.
The controversy
focuses on the E¼
and NE corners of
sec. 32 and the E¼
corner of sec. 29.
Longview Fibre
T~4~N R~2~W
Willamette Meridian Oregon

34. • Originally surveyed in
1855 by Joseph and John
Trutch
• Resurveyed in 1933 by
Otis Gould

35. • Gould doesn’t find E ¼
cor. & NE cor. Sec. 32 &
E ¼ cor. sec. 29.
• Reestablishes NE cor.
Sec 32 & E ¼ cor. Sec
29.

36. • Olsen (a private
surveyor working for
Longview) resurveys in
1983
• Olsen finds scribed
bearing trees at E ¼
cor. Sec. 32.
• The bearings and
distances matched
very closely those
recorded

37. • At the NE corner of sec.
32, Olson Thinks he
finds remains of 3 badly
rotted bearing trees.
• No scribing found
• And at the E ¼ cor.
Sec. 29 he finds more
of the same.
• Olsen remonuments all
three corners.

38. • In 1984 BLM Cadastral Surveyor
Frank A. Tuers investigates and
accepts the ¼ cor. of secs. 32 &
33.
• Rejects the other 2 corners.

39. • While he noted the bearing trees
recovered by Olson in each
case, he did not regard this as
"clear and convincing evidence"
regarding the location of the
original 1855 corners

40. • He concluded instead that
Gould's corners should be
considered the true corners.
BLM took no formal action at
that time because the E¼ corner
of sec. 32 was on private land,
and the NE corner of sec. 32
and the E¼ corner of sec. 29
were considered properly
reestablished

41. 1991 Survey
• In 1991, BLM dependently
resurveyed the exterior
lines of sec. 29
• Performs a corrective
dependent resurvey of the
line between secs. 32 and
33 of the township, taking
into account Olson's 1984
recovery of the E¼ corner
of sec. 32

42. • The BLM decided not to alter the proportionate
positions for the NE corner of sec. 32 and the E¼
corner of sec. 29, both of which had been determined
"lost" in 1933.

43. • Longview filed a protest.
• It objected to BLM's resurvey of
the line because BLM ignored
evidence recovered by Olson in
1983 pointing to the original
1855 location of the three
corners on that line.
• Longview noted that BLM's
resurvey placed its past logging
efforts, which (based on the
Olson survey) had been
assumed to be on private lands
within secs. 28 and 32, in
trespass on Federal lands in
adjacent sec. 29

44. • The BLM also refused to
reproportion the NE corner of
sec. 32 and E¼ corner of sec.
29 on the basis of Olson's
recovery of the original 1855
E¼ corner of sec. 32. It
reaffirmed its position that to
move the corners would not
necessarily locate them at their
original or a more equitable
position and would undermine
the longstanding reliance by
private landowners on the
existing Gould corners

45. BLM Response
• BLM reaffirmed its position that
there was not a
"preponderance of the
evidence" that Olson had
remonumented the original
1855 corners.

46. • The BLM also refused to
reproportion the NE corner of
sec. 32 and E¼ corner of sec.
29 on the basis of Olson's
recovery of the original 1855
E¼ corner of sec. 32. It
reaffirmed its position that to
move the corners would not
necessarily locate them at their
original or a more equitable
position and would undermine
the longstanding reliance by
private landowners on the
existing Gould corners

47. IBLA Decision
• The decision stated that
“the rule that the pattern of
trees will not alone suffice
to identify the location of
either of the original
corners, in the absence of
some evidence
corroborating that the trees
are the original bearing
trees.”

48. • We have carefully reviewed,
and now reject as
unpersuasive, Olson's
probability analysis…There
is no proof that the original
1855 stand was identical or
even close to the stand
currently assumed to have
existed

49. • We conclude that, given the
inconclusive nature of evidence
regarding the species of the
bearing trees identified by
Olson, the lack of any reliable
evidence regarding their size,
and the problems with
determining their exact positions
together with the likelihood that
a number of other groupings of
trees matching the record
might, at one time, have been
identified, the evidence
generated by Olson does not
determine the position of the
original NE corner sec. 32 and
E¼ corner sec. 29.

50. Proportioning
• In the course of the resurvey, BLM
declined to correct the error in the Gould
resurvey by reproportioning the NE corner
of sec. 32, and then the E¼ corner of sec.
29. It is well established that a survey that
has already been accepted will not be
overturned, especially after a long lapse of
time, except upon clear proof of fraud or
gross error amounting to fraud

51. • The IBLA in its decision states “In some
instances, bona fide rights are protected
only where BLM departs from a rigid
application of resurveying principles to
ensure that long-accepted survey lines are
not disturbed, so that property boundaries
are stabilized and title is secured.”

52. IBLA Decision
• We agree with BLM's assessment that a
second reproportioning would not
reestablish the Trutch's 1855 corners.
• In these limited circumstances, in view of
the length of time that the 1933 corners
have been acknowledged and the fact that
lands have been acquired and title
transferred based on those corners, BLM
properly decided not to reproportion again.

53. Hasenyager and Longview
• “In Longview the IBLA did not conclude that BLM
was justified in refusing to accept a newly-
recovered original monument” in fact they did
accept a newly recovered monument. “…Rather,
they held that BLM continued to be justified, in a
1991 dependent resurvey, in considering the
corners to be lost, since the newly-recovered
trees could not be positively identified as
accessories to the original monuments.”

54. • In Longview the IBLA upheld the BLM’s
decision not to use a newly found
controlling corner to reproportion the 2
corners because “a second proportioning
of the corners would not reestablish the
lost corners in their true original positions.”
and “would impair…the bona fide rights of
other private landowners who had, in good
faith, relied on the lines and monuments of
the1933 resurvey for close to 60 years.”

55. Hasenyager Decision
• “The corner at the location of the original
monument was the corner in effect at the time of
the 1897 and 1963 patent of public land on
either side of the section line between secs. 6
and 7. The boundaries of the patented land were
thus fixed by the original monuments set in the
1896 survey, and have remained fixed since that
time, because the patentees took title to the land
on the basis of the last official survey prior to
patent as it was actually run on the ground,
which survey was incorporated in the patent and
necessarily has been incorporated in every
succeeding transfer based on those patents.”

56. IBLA Conclusion
• “Our decision in Longview Fibre, which
affirmed BLM’s decision not to overturn a
1933 resurvey, was expressly predicated
on certain “limited circumstances,”
specifically, the fact that a “second
reproportioning” of the lost corners, by
corrective resurvey, “would not reestablish
the original . . . 1855 corners.” Such
circumstances do not pertain here, since a
corrective resurvey would indisputably
reestablish the original 1896 corners.”

57. • BLM must now correct the 1983
dependent resurvey so that it does, in
fact, “follow” the lines of the original
survey. BLM’s decision upholding a
dependent resurvey relocating lost
corners by proportionate measurement
will be reversed and remanded, when
BLM, after accepting the resurvey,
recovers the original corner positions
and their original survey monuments in
place, where adherence to the
proportioned corners would impair the
bona fide rights long established by
reference to the original corners….

58. • It is said that the “purpose” of a
dependent resurvey “is not to
‘correct’ the original survey by
determining where a new or exact
running of the line would locate a
particular corner, but rather to
determine where the corner was
established in the beginning.” In the
present case, we now know with
certainty where the NE corner and N
quarter-corner were “established in
the beginning,” and have been shown
no reason for ignoring the positions
of those corners.

59. • Accordingly, pursuant to the
authority delegated to the Board
of Land Appeals by the
Secretary of the Interior, 43
C.F.R. § 4.1, the decision
appealed from is reversed, and
the case is remanded to BLM
for further action consistent
herewith.

60. State Directors Response

61. Discussion
• What the Manual Says:
• A dependent resurvey is designed to retrace and
reestablish the lines of the original survey,
marking the boundaries of the legal subdivisions
of the public lands, in their “true original
positions,” according to the best available
evidence.
• Survey Manual, section 6-4.

62. Discussion
• What the IBLA has said:
–“The proper execution of the dependent
resurvey serves to protect the bona fide
rights of the land owners, because a
properly executed dependent resurvey
traces the lines of the original survey.”
John W. Yeargan, 126 IBLA 361

63. Discussion
• BLM is required, during the course of a
dependent resurvey, to thoroughly and diligently
search for any evidence of the original corners,
including the monument and its accessories:
“The retracement surveyor must act as a
detective to gather, verify and consider all
available evidence.” …Further, it must do so by
following the field notes of the original survey, in
order to ensure that it has the best chance of
recovering such evidence. Survey Manual, 5-6
and 6-26,