As-Built Wall in a Drainage Easement
A retail building in Kent County has just been completed. The recorded subdivision plat grants a 20-ft-wide drainage easement along the rear lot line. Your as-built survey, measured at the base of the 6-ft retaining wall, shows the wall face 1.8 ft inside the easement. The engineer's approved plan shows the wall 2.0 ft outside the easement. The general contractor says the wall 'is within survey tolerance' and asks you to plot the top of wall instead of the face, which would move the line about 0.9 ft and make the encroachment look smaller. The owner needs a certificate of occupancy, and the engineer is on vacation. The county inspector has not yet reviewed the as-built.
1. What should you measure and show, and how should you respond to the contractor's request?
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Measure and locate the feature that legally matters: the wall face at its base, because that is the physical limit of the structure and the part that occupies the easement. The top of wall may overhang or step back, so substituting it for the base would misrepresent the encroachment. Show the easement from the recorded plat, the wall face, and the 1.8-ft overlap. If you also show the top of wall, label it separately and explain why it is not the controlling line. Refuse the request to choose a measurement that makes the encroachment look smaller. The fact that the contractor calls it 'within tolerance' does not change the recorded easement width or the as-built condition. Put the request and your refusal in the file, and give the owner and engineer a clear, factual as-built rather than a drawing shaped to avoid a permit problem.
2. Who should receive the discrepancy, and what are the possible resolutions?
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Send the discrepancy to the owner, the engineer of record, the county reviewer, and the easement holder, because each has a different interest. Possible resolutions include relocating the easement by a recorded instrument if the holder agrees, removing or rebuilding the wall, obtaining a variance or design modification if the drainage function can still be met, or redesigning the drainage system. You can identify and map these options, but you should not decide which one is legally sufficient. Your role is to give accurate geometry and a clear statement of the conflict so the parties can choose. If the county will not issue a certificate of occupancy until the conflict is resolved, say so in writing. Do not let the owner believe the as-built is approved just because you delivered a map.
3. What professional and legal risk arises if you seal a drawing that omits the encroachment?
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Sealing a drawing that omits a known encroachment misrepresents the as-built condition. It can expose you to board discipline for incompetence or misconduct, to civil liability if the owner or easement holder relies on it, and to professional embarrassment when another surveyor or the county finds the wall. It may also support a false certificate of occupancy or conceal a drainage problem. The risk is not cured by saying the contractor directed the change; your seal represents your professional judgment. The defensible course is to show what you measured, describe the conflict, and let the decision-makers resolve it. If you are asked to remove the encroachment from a drawing, decline in writing and preserve the original field data and the request. Accurate bad news is safer than a clean-looking false map.