10/24/2016

Legal opinion: Thomas deed restrictions do not apply to former library building

In 1919, William Widgery Thomas donated about a quarter acre of land on Bowery Beach Road, and the former schoolhouse sitting on it, for use as a free public library, forever.

The town learned this month that the gift, and the stipulation that went with it, mostly likely referred to the land and not to the library building, which was relocated to Scott Dyer Road more than 70 years ago.

The opinion from Town Attorney Thomas Leahy comes as a five-member committee is reviewing proposals for use of the former Spurwink School, which housed the original Thomas Memorial Library and continued as the children's library until last year.

In an opinion dated Oct. 13, 2016, Leahy said he believed the building, vacant since the renovated portion of the library next to it opened in February, is not subject to deed restrictions and can be used however the town sees fit. In a 2015 survey, townspeople said they would like to see some sort of public use.

Two proposals are under consideration: one to house the collection of the Cape Elizabeth Historical Preservation Society; the other to serve as a collaborative learning space for the School Department. The schools recently amended their proposal, saying they would like to share the building with the historical society and perhaps other groups.

The committee tabled considering the proposals, however, until the legal restrictions were clarified.

Leahy based his opinion on the language of the deed, which he said focused on the land and not the building:

"The restriction in the Thomas Deed provides that 'the said lot of land and the building from time to time thereon standing, shall always be held, occupied and used by the Inhabitants of the Town of Cape Elizabeth for the purpose forever maintaining thereon a free Public Library ... ' (emphasis added)," Leahy wrote.

The phrase "from time to time" implies that the structure will change; and the term "thereon" places the focus of the restriction on the land rather than the building, Leahy said.

The exact location of the lot cannot be determined without a survey, but the description places it on the Great Pond side of Bowery Beach Road just south of Fowler Road. It is part of a 340-acre parcel now owned by the Sprague Corporation and is likely part of an easement to the Maine Department of Transportation.

The library building was moved to its present location in 1944 in response to dwindling population in the Spurwink area and limits to travel imposed by wartime gas rationing. Moving the library from its original location, however, breached the Thomas conveyance, Leahy said.

"Assuming the restriction in the Thomas deed, and the right of reversion (to Thomas heirs), applied to the building, it is our opinion that once the building was removed from the conveyed real estate the restriction no longer applied," Leahy wrote.

Because chances are slim that the building is encumbered, the town could continue to use the building as it sees fit. But if the town wanted to remove all doubt, it could attempt to locate and acquire disclaimers from all of the Thomas heirs, something Leahy estimated would cost between $15,000-$30,000.

The Town Council received the opinion Oct. 20 and has not discussed it, said Town Manager Michael McGovern. "My recommendation will be that the council accept the primary premise of the opinion and take no further action," McGovern said.

The Spurwink School Committee will meet next on Nov. 9.