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obligations and complete title passed to the purchaser, Green Bay & Mississippi Canal Co., under foreclosure sale. This company in turn sold the improvements to the United States, reserving to itself the water power created by the dam and the use of surplus water not required for navigation. The Kaukauna Co., a riparian owner, began to execute and build a canal upon these abutting lands for the purpose of drawing water from a pond formed by the dam and thus deprive the Green Bay Co. of its use and dominion over it. The court enjoined the defendant company and the case went to the Supreme Court of the United States. The question for consideration was whether an act of the legislature which authorized the State to take and appropriate the water power in question was valid. After stating that it is the settled law in Wisconsin that the ownership of riparian proprietors extends to the thread of the stream, subject to the right of the public to its use as a public highway for the passage of vessels, the Supreme Court, through Mr. Justice Brown, handed down the decision from which the quotation was taken in United States v. Chandler-Dunbar, supra. The court proceeded to say (142 U. S. at p. 273):
Those proprietors lost nothing that was useful to them except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the State could condemn this use of the water with the other property of the riparian owner it might raise a revenue from it sufficient to complete the work which might otherwise fail. There was every reason why a water power thus created should belong to the public rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin, and perhaps in other States, in authorizing the errection of dams for the purpose of navigation or other public improvement, to reserve the surplus of water thereby created to be leased to private parties under authority of the State; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation, it is believed, has been uniformly sustained.
And the court (p. 276) concludes:
Under the circumstances of this case, we think it within the power of the State to retain within its immediate control such surplus as might incidentally be created by the erection of the dam.
It will be noted that the Kaukauna case dealt with the power of the State in the exercise of its functions in relation to navigation, while the Chandler-Dunbar case, supra, dealt with the right of the Government in reference to the same matter. The court appears to assume that there is no distinction in principle in the two cases; but the question is definitely settled in the case of Green Bay, etc., Canal Co. v. Patten Paper Co. (172 U. S., p. 58), in which the right of the United States to control and dispose of surplus waters created by the improvement to the navigation described in the Kaukauna case was brought into question. The court, through Mr. Justice Shiras (p. 68), says:
Whether the water power, incidentally created by the erection and maintenance of the dam and canal for the purpose of navigation in Fox River, is subject to control and appropriation by the United States, owning and operating those public works, or by the State of Wisconsin, within whose limits Fox River lies, is the decisive question in this case.
The court reviewed the facts relating to the grant of land by act of Congress to the future State of Wisconsin for the improvement of navigation and other matters set out in the former (Kaukauna) case, and the sale by the Green Bay & Mississippi Canal Co. of its
property to the United States Government, under an act of the Legislature of Wisconsin and an act of Congress providing for the purchase. Relating to this transaction, the court (p. 79) said:
The legal effect and import of the sale and conveyance by the canal company were to vest absolute ownership in the improvement and appurtenances in the United States, which proprietary rights thereby became added to the jurisdiction and control that the United States possessed over the Fox River as a navigable water. By the findings of the arbitrators the sum of three hundred and twentyfive thousand dollars was payable to the canal company, but, by agreement and under the act of Congress of June 10, 1872, the United States consented to the retention by the canal company of certain personal property and of the water powers, with the lots appurtenant thereto, in part payment of the sum at which the entire plant had been appraised; and accordingly, in its deed of conveyance, the company reserved to itself such personal property and the water powers and appurtenances, and the United States paid the remaining sum of one hundred and forty-five thousand dollars.
The substantial meaning of the transaction was, that the United States granted to the canal company the right to continue in the possession and enjoyment of the water powers and the lots appurtenant thereto, subject to the rights and control of the United States as owning and operating the public works, and that the United States were credited with the appraised value of the water powers and appurtenances and the articles of personal property. The method by which this arrangement was effected, namely, by a reservation in the deed, was an apt one, and quite as efficacious as if the entire property had been conveyed to the United States by one deed, and the reserved properties had been reconveyed to the canal company by another.
So far, therefore, as the water powers and appurtenant lots are regarded as property, it is plain that the title of the canal company thereto can not be controverted; and we think it is equally plain that the mode and extent of the use and enjoyment of such property by the canal company fall within the sole control of the United States. At what points in the dam and canal the water for power may be withdrawn, and the quantity which can be treated as surplus with due regard to navigation, must be determined by the authority which owns and controls that navigation. In such matters there can be no divided empire.
On page 76 the court, after observing that structures for private purposes could not be authorized by the legislature, says:
But we have here the case of a water power incidental to the construction and maintenance of a public work and, from the nature of the case, subject to the control of the public authorities, in this instance the United States.
In determining the question whether the United States has a right to deal in matters such as were involved in the Chandler-Dunbar case and in the Green Bay-Patten Co. case, no distinction can legitimately be made between a case where the property is acquired by purchase and one where the property is obtained by condemnation or under the supreme mandate of the Congress of the United States in matters relating to national concern, so long as the exercise of the right comes properly within governmental functions. When the Government, in the exercise of constitutional powers such as are invoked in the instant case, takes control of the subject matter, all questions legitimately within the purview of the power must be disposed of and determined by the authority in control. “In such matters there can be no divided empire.” The cases determine that where the Government is in control of power developed as an incident to the operation of governmental functions it has the exclusive right to draw the line between the quantum necessary for its major purposes and any surplus that may be created, and deal with such surplus in any manner deemed suited to its interests. The waterpower project, consisting of dams, power houses, riparian lands, and
rights to the use of the flow of the stream, is an appurtenance to the main factory in which nitrates and fertilizers were to be manufactured, and is essential to the operation of the plants as well as of the locks and gates constructed in aid of navigation. Considered as a mere property right, the authority of Congress extends to the making of all needful rules for the maintenance and protection of its property as well as for its disposal. All the powers of Congress are of equal force and this one over the property of the United States is just as effective as the war power or the commerce power, to subordinate the laws and actions of the State to the purposes of the General Government. Respectfully submitted.
B. M. PARMENTER.
EXHIBIT A To the PRESIDENT OF THE UNITED STATES:
We, the duly constituted authorities of the State of Alabama, recognizing and respecting every right, equity, and power of our Nation, but conscious of our solemn obligation to the State of Alabama and its people to assert, defend, and protect every right, equity, and power of Alabama, as provided and guaranteed in the laws of the land, do hereby present to you, the President of the United States, the following memorial and statement regarding the rights of Alabama, in and to the bed, shores, water, and power of that portion of the Tennessee River which is within the State of Alabama, and, specifically, with
egard to the project located at Muscle Shoals, known as Wilson am, with the appurtenances thereto:
Subject only to the authority of the United States relative to navigation and to war purposes, the State of Alabama claims absolute title to and ownership, jurisdiction, and control of that portion of the Tennessee River which is within the State of Alabama, its waters, banks, beds, and soils, including the power in the water and the value thereof, and all other property rights in any wise incident thereto or arising therefrom.
Our contention that such title is in the State for public purposes is upheld by the uniform decisions of the Supreme Court of Alabama.
The Supreme Court of the United States has uniformly held that each State has the right to determine this question for itself.
The State of Alabama is prepared to supply ample and satisfactory authorities and briefs in support of each of the foregoing propositions, and stands ready to confer with the duly constituted authorities of the United States Government in regard to the rights and claims above stated.
Earnestly feeling our responsibility, and believing that the adjustment of this matter is peculiarly within the powers and functions of the Chief Executive of the Nation, we respectfully submit these claims to the consideration of the President of the United States. With highest esteem, we have the honor to be, Most respectfully,
Governor of Alabama.
Chairman Muscle Shoals Commission of Alabama.
Member, Muscle Shoals Commission of Alabama.
Member, Muscle Shoals Commission of Alabama.
The pertinent parts of the act of Congress known as the national defense act approved June 3, 1916 (United States Comp. Stat. 1916, vol. 4, sec. 3110 B), are contained in section 124 thereof and read as follows:
“Nitrate supply.--The President of the United States is hereby authorized and empowered to make, or cause to be made, such investigation as in his judgment is necessary to determine the best, cheapest, and most available means for the production of nitrates and other products for munitions of war and useful in the manufacture of fertilizers and other useful products by water power or any other power as in his judgment is the best and cheapest to use; and is also hereby authorized and empowered to designate for the exclusive use of the United States, if in his judgment such means is best and cheapest, such site or sites, upon any navigable or nonnavigable river or rivers or upon the pubic lands, as in his opinion will be necessary for carrying out the purposes of this act; and is further authorized to construct, maintain, and operate, at or on any site or sites so designated, dams, locks, improvements to navigation, power houses, and other plants and equipment or other means than water power as in his judgment is the best and cheapest, necessary or convenient for the generation of electrical or other power and for the production of nitrates or other products needed for munitions of war and useful in the manufacture of fertilizers and other useful products.
“The President is authorized to lease, purchase, or acquire, by condemnation, gift, grant, or devise, such lands and rights of way as may be necessary for the construction and operation of such plants, and to take from any lands of the United States, or to purchase or acquire by condemnation, materials, minerals, and processes, patented or otherwise, necessary for the construction and operation of such plants and for the manufacture of such products.
“The products of such plants shall be used by the President for military and naval purposes to the extent that he may deem necessary, and any surplus which he shall determine is not required shall be sold and disposed of by him under such regulations as he may prescribe.
"The plant or plants provided for under this act shall be constructed and operated solely by the Government and not in conjunction with any other industry or enterprise carried on by private capital.”
Know all men by these presents, that the Muscle Shoals Hydro-Electric Power Co., a corporation organized and existing under the laws of the State of Alabama, for and in consideration of the sum of one dollar ($1.00) to it in hand paid by the United States of America, the receipt whereof is hereby acknolwedged, does hereby give, grant, bargain, sell and convey unto the said United States of America the following lands situated in the Counties of Colbert and Lauderdale, State of Alabama.
The lands situated in Colbert County being described as follows, to wit:
A part of fractional section 18, township 3 south, range 10 west of Huntsville principal meridian, more particularly described as follows, to wit: Beginning at the northeast corner of said fractional section 18; running thence south along the section line for a distance of 800 feet to a point; running thence southwesterly in a straight line for a distance of 2,797.8 feet to a point 800 feet from the south bank of the Tennessee River at low-water mark; running thence north for a distance of 800 feet to the south bank of the Tennessee River at low-water mark; running thence along the south bank of the Tennessee River at low-water mark to the point of beginning; containing 47.8 acres, more or less.
Also a strip or parcel of land situated, lying and being in fractional section 18, township 3 south, range 10 west of Huntsville principal meridian, described as follows, to wit: Beginning at the point of intersection of the section line between section 13, township 3 south, range 11 west, and section 18, township 3 south, range 10 west, and the low-water mark of the Tennessee River; running thence south along the section line for a distance of 630 feet to a point; running thence in a northeasterly direction to a point on the half-section line, said point being 630 feet south of the point of intersection of the half section line and the low-water mark of the Tennessee River; running thence north along the half-section line for a distance of 630 feet to the point of intersection of the half-section line with the low-water-mark of the Tennessee River; running thence along the low-water line of the Tennessee River in a southwesterly direction to the point of beginning, subject to the agreement relative to the houses and fences on said tract contained in the deed of Elizabeth C. Sadler and husband, W. H. Sadler, to Wiley Alford bearing date of May 7, 1914, and recorded in the office of the judge of probate of Colbert County, Ala., in volume 16 of Deeds, page 551, and as modified by the agreement between Elizabeth C. Sadler and husband W. H. Sadler, and Wiley Alford, bearing date of May 12, 1914, and recorded in the office of the judge of probate of Colbert County, Ala., in volume 16 of Deeds, page