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The same conveyance describes the two parcels lying south of the river as going to “low-water mark.” The deed contains the following clause:
To have and to hold the foregranted premises, with all the rights, easement, and appurtenances thereunto belonging to the said United States of America, its successors and assigns forever. (See Exhibit C.)
The land on Jackson Island purchased from Thomas F. Jones was conveyed to the United States by warranty deed and contains the following description:
Beginning at a point at the water's edge on the north side of Jackson Island, 4,152 feet south of and 148 feet west of the northeast corner of section 7, township 3 south, range 10 west, said point being on a line parallel to and 1,000 feet east of the upstream side of proposed Dam No. 2; thence south 10° 39' 30'' east for a distance of 1,200 feet, more or less, to the water's edge on the south side of Jackson Island; thence along the said water's edge on the south side of Jackson Island in a westerly direction, about 2,200 feet; thence north 10° 39' 30" west along a line parallel to and 1,177 feet west of the upstream side of proposed Dam No. 2 for a distance of 1,315 feet, more or less, to the water's edge on the north side of Jackson Island; thence along said water's edge in an easterly direction about 2,200 feet to the point of beginning, containing 54.04 acres, more or less. This acreage includes all that area on Jackson Island and adjacent towheads between a line 1,000 feet upstream from and parallel to the upstream side of proposed Dam No. 2, and a line 1,177 feet downstream from and parallel to the upstream side of proposed Dam No. 2, all being in Lauderdale County, Ala.
This deed also grants and conveys “the right to flood permanently by means of a dam across the Tennessee River, to be erected on the land herein above described,” said land being certain islands covering an area of 455.78 acres, more or less. (See Exhibit C-1.)
The abstracts of title show that the Muscle Shoals Hydro-Electric Power Co. obtained its title to the land conveyed by it to the United States through mesne of conveyance covering a period of approximately 100 years. The title had its inception in the act of May 23, 1828, chapter 75 (4 Stat. 290), entitled, “An act to grant certain relinquished and unappropriated lands to the State of Alabama, for the purpose of improving the navigation of the Tennessee, Coosa, Catawba, and Black Warrior Rivers." By this act provision was made for the relinquishment to the State of Alabama of 400,000 acres of land conveyed by said corporation to the United States, above described, “to be applied to the improvement of navigation of the Muscle Shoals and Colberts Shoals, in the Tennessee River and such other parts of said river within said State as the legislature thereof may direct
(See Exhibit D.) The field notes of the Government's survey of fractional section 7 read as follows:
Beginning at the west boundary of the township on the north bank of Tennessee River, thence up the same with its various meanders, viz: N. 64 E, 31 chains, 25 links; N. 65 E. 30 chains, 00 links; N. 89 E. 28 chains, 50 links, at the east boundary of the section.
The plat of survey shows that fractional section 7 contained 406.72 acres.
The field notes of fractional section 18 read:
Beginning at a post on the bank of Tennessee River where the east boundary strikes it, thence down the same with its meanders, viz: S. 6612 W. 9.46; S. 7172 W. 8.50; 8. 6912 W. 5.75; S. 72 W. 7.00; S. 8342 W. 10.65; S. 73 W. 45.00, to the western boundary of the section.
The plat of survey shows fractional section 18 to contain 271.88 acres.
(NOTE.-The records of public surveys in the Department of the Interior do not disclose when the Government's survey of the above lands was made. However, the field notes with reference to fractional section 7 indicate that the plat of survey was examined by John Coffee, surveyor, on November 20, 1917, and that the same surveyor examined the plat of fractional section 18 on June 13, 1818. It is evident that the survey was made shortly before Alabama was admitted as a State.)
FRACTIONAL SECTION 7 The grant of May 23, 1828, supra, included "all of fraction 7 lying north of the Tennessee River containing 406.72 acres, township 3 south, of range 10 west of Huntsville meridian in Alabama." The abstract of title shows the foregoing item to be taken from page 181 of the “Alabama State Tract Book." On page 182 of the tract book the record shows conveyance from the State of Alabama as follows:
J. Hickman, July 28, 1831.
80 80 114 132
406 The foregoing constitutes the entire record relating to these several transfers. It is obvious that serious difficulty is encountered when it is sought to tell which of the above-named persons purchased from the State the land in section 7 bordering on the river. The records have been examined by the United States district attorney of Alabama, the secretary of state of Alabama, and by representatives of the bureau of investigation of the Department of Justice for the purpose of ascertaining if possible just what lands were conveyed to the respective parties named, but there appears to be nothing of record except as above indicated. It is evident that the documents were not recorded. However, the abstract would appear to indicate that the 114-acre tract is the land bordering the river on the north.
Neither of the State's patentees above named appears in the abstract of title after the item above referred to, but there is frequent reference to a tract of 114 acres and no reference is anywhere made to the 80 and 132 acre tracts. For instance, the abstract shows that in 1838 a trust deed was executed by one Argus Cameron to William R. Wood, described as follows:
S. E. part of fractional section 7, T. 3 S., R. 10 W., contains 114 acres; and in 1843 deed from William R. Brown to Joseph C. Marrs containing the same description. The abstract shows that on March 19, 1878, a mortgage then executed contained the following description:
114 acres, being a part of fractional section 7, T. 3, R. 10 W., lying on the Tennessee River; and the N. 42 of the NE. 24 of said section 7 containing, in all, 194 acres, more or less.
The importance of knowing what the conveyances describe lies in the fact that with a description at hand it could be determined whether the State attempted to reserve to itself the bed of the river adjacent to
the uplands conveyed. Fortunately we are not left without recourse for other conveyances made by Alabama a few years later were placed of record and made available. These contain no reservations of any kind and it is fair to assume that if Alabama conveyed lands on the banks of the river in one case without attempting to reserve the bed of the stream she would do so in other conveyances made about the same time. On December 6, 1838, the State conveyed to one Terry Bradley of the county of Lauderdale “the SW. 12 of fractional section 36, township 2 south, range 10 west, containing 92.93 acres. This is a description of a fractional lot bordering on what is now one of the slack-water pools upsteam from the Wilson Dam. (See Exhibits L and M.)
FRACTIONAL SECTION 18 It appears from the abstract of title that on November 2, 1818, John Coffee made "entry” upon this land. The description reads:
The entire fractional section 18, south of the Tennessee River, township 3 south, of range 10 west, of Huntsville meridian in Alabama, containing 271.88 acres.
The name of John Coffee does not appear at any other place in the record.
The next instrument affecting the title is a mortgage from William M. Jackson and wife to Toliver L. Chilholm as trustee for Samuel D. Weakley, dated February 25, 1869. This mortgage describes the land as “276.88 acres being the whole of fractional section 18”; and in all conveyances from 1869 to 1897 the land is deeded either as "fractional section 18" or "all of fractional section 18," or "the whole of fractional section 18,” and in some instances the words " 'more or less " appear after the statement of the number of acres conveyed. In 1902 a portion of fractional section 18, covering the land now owned by the United States, was conveyed to one M. E. Malone, the description being as follows:
A tract of land in fractional section 18, T. 3, R. 10 W. * beginning at the northeast corner of said fractional section 18, thence south 31 chains to the southeast corner of said fractional section; thence west 9 chains and 75 feet; thence north 27 chains and 16 feet; thence along the Tennessee River front to the point of beginning, containing 6442 acres, more or less.
From the year 1906 on to the time of the Government's purchase the instruments making up the chain of title employed descriptions by metes and bounds and concluding with language substantially as follows: "Thence along the south bank of the Tennessee River at lowwater mark to the point of beginning.”
Whatever may be the subsequent history as to the quantum of land transferred from one party to another, the State of Alabama did not reserve to herself any part of the bed of the Tennessee River. Her interest is in no way affected by the fact that later conveyances of tracts in fractional section 18 describe the land as bounded by the south bank of the river or by low-water mark.
The parcel conveyed by Thomas F. Jones to the United States, June 3, 1918, is wholly in fractional section 7, and appears to be confined to land above the water's edge. It appears that Jackson Island
was “entered" by James Jackson on July 24, 1821, when the United States issued to him a certificate describing the land as follows:
Fraction A, containing 49.39 acres, and fraction B, containing 22.5 acres (island) in fractional section 7, T. 3, R. 10 W.
We are concerned with fraction A, section 7, only. The abstract shows that fraction A was also frequently referred to as lot A. Wilson Dam is constructed across fraction or lot A, fractional section 7. Thomas F. Jones, the Government's grantor, obtained his title by warranty deed on May 15, 1909. The State of Alabama does not appear anywhere in the chain of title. The various lots with reference to which Jones conveyed flowage rights to the United States in his deed to the Government, describe a number of islands in the Tennessee River above Wilson Dam, and fractional parts of islands below Wilson Dam.
EFFECT OF CONVEYANCE WITHOUT RESERVATION OF LANDS BOUNDED
BY A NAVIGABLE RIVER
At common law, a conveyance of land bounded by a river or a stream in which the tide does not ebb or flow, although navigable in fact, is presumed to carry title to the thread of the stream. In those States where the common law of England has been adopted by legislation, it is unqualifiedly held that a conveyance of land, bounded by a navigable, nontidal river, in the absence of anything in the deed to show a contrary intention, is presumed to carry title to the thread of the stream. This is on the theory that it could not be anticipated that a grantor would desire to retain title to the bed of the stream between the shore and the center line thereof when he had conveyed the abutting uplands. (9 Corpus Juris, 185. In re Opening West Farms Road, 212 N. Y. 325.)
This presumption prevails even against the State, when the conveyance is for a consideration, and there is nothing to indicate that the State intended to except the bed of the stream. (Fulton Light Company v. State, 116 N. Y. S. 1000.)
UNITED STATES PATENT OF JULY 22, 1926
On July 28, 1916, the United States, through the General Land Office, issued its patent to the State of Alabama pursuant to the act of Congress of May 23, 1828, supra, covering all lands embraced in said grant. (See Exhibit E.) This patent was obviously issued for the purpose of clearing the title of the lands conveyed in the earlier period hereinbefore referred to by the State of Alabama, and presumably related back to the time of the original grant; so that the chain of title appears to be complete from the time of the first patent issued by the State until its final lodgment in the United States. (See Exhibit F.)
POSITION OF MUSCLE SHOALS HYDRO-ELECTRIC POWER CO. UNDER THE
ACT OF ALABAMA OF MARCH 7, 1907 On March 7, 1907, Alabama passed an act providing that any person, firm or corporation organized for the purpose of improving navigation upon a navigable river in Alabama, and of developing in connection therewith water power by a dam and lock or a system of dams and locks, and electrically transmitting and distributing such power for the use of the public, having first acquired the necessary lands upon both sides of such river, and shall have organized or incorporated for the specific purpose of improving the navigation of and developing water power in connection with a particular and specified river, and having prepared plans for the construction of a dam or system of dams and a lock or system of locks pertaining thereto, and filing a copy of said plans in the office of the secretary of State of Alabama, together with a certified copy of its articles of incorporation (if a corporation), which provide both for the improvement of navigation of such river and the developing to the full water power of the same over the stretch of river thus to be improved, shall have authority to construct a dam or system of dams with a lock or system of locks pertaining thereto for the improvement of navigation by one or more slack water pools, and to that end and in consideration of the benefits to the public by reason of the improvement of navigation of such river and the development of water power thereof, is granted an easement for power purposes to and in the waters and bed of the river in which such dam or system of dams and lock or system of locks are to be constructed, etc. (Section 10,570, et seq., Code of Alabama, 1923; see Exhibit G.)
Pursuant to said act of 1907, the Muscle Shoals Hydro-Electric Power Co., a corporation, organized with the right to construct dams across navigable streams for power purposes, obtained the necessary lands upon both sides of the Tennessee River for the abutment sites for the Wilson Dam and locks. This corporation did not construct the dam but it executed the necessary deeds to the United States in order that the United States might construct the dam for the purpose of improving the navigation of the river and developing power for the manufacture of electricity: Conforming to the requirements of the statute, above mentioned, the Muscle Shoals Hydro-Electric Power Co. prepared plans for the construction of the dam and locks and filed the same in the office of the secretary of state, together with a certified copy of its articles of incorporation. (See Exhibit H, letter of Muscle Shoals Hydro-Electric Power Co. to the secretary of the State of Alabama under date of January 4, 1916.)
THE TITLE IS NOT AFFECTED BY COLONIAL CHARTERS
At a conference held with the Muscle Shoals commission in the office of the Attorney General on May 23, 1927, Mr. John S. Tilley, attorney and spokesman for the commission, stated, "the right of property in navigable waters was conferred upon the Colonies by the royal charters, was succeeded to by the States, and, we think, can be interfered with by the Federal Government only to preserve a free navigation." This statement is not germane to the present case.
The only royal charters which could possibly have affected that portion of the present State of Alabama through which runs the Tennessee were those of Charles II, granting the Province of “Carolina" to Lord Clarendon and others of his favorites in 1663 and 1666