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. 1⁄2 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 641⁄2 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.

JACKSON ISLAND

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 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 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.)

IV

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 8 D-70-1-vol 24-30

and that granted by George II to Oglethorpe and others under the name of the Colony of Georgia, in 1732; and neither of these was in existence at the time of the Revolutionary War. The Carolina charters were surrendered to the Crown in 1729, and the Georgia charter in 1751. (Story of the Constitution, fifth edition, pp. 98, 102; Winsor's Narrative and Critical History of America, vol. 5, pp. 301, 389.)

These charters are of no importance here except in reference to whether upon their surrender all powers of sovereignty originally granted by the King to the proprietaries went back to the Crown. That such was the case is clear from Martin v. Waddell (16 Peters 366) and Johnson v. McIntosh (8 Wheat. 542). In the Johnson case Chief Justice Marshall, speaking for the Supreme Court, at page 579, said:

* The Carolinas were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors, and declared their independence immediately of the Crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government but retained his title to the soil. That title was respected until the revolution, when it was forfeited by the laws of war.

The grant of Charles II to Lord Clarendon and others comprehended the whole country from 36° 30' north latitude to 29° north latitude and westward from the Atlantic Ocean. (Thirty-five degrees north latitude marks the northern boundary of northern Alabama.) The Georgia colony included northern Alabama, Georgia claiming all lands between the thirty-first and thirty-fifth degrees north latitude from its present western boundary to the Mississippi River.

The colonial charters were substantially similar, carrying with them sovereign rights and kingly prerogatives and making mandatory in the New World the application of the common law of England. The charter of Oglethorpe was practically the same in its terms as that to Clarendon. For convenience a copy of the latter is appended to this memorandum. (See Exhibit I.) These charters gave to the proprietaries the jura regalia in the arms of the sea where the tide ebbed and flowed royal or public rivers, etc., as well as the jura privatum within their respective territories. When they were surrendered or forfeited the jura regalia went back to the Crown and so remained at the time of the Revolutionary War, at the close of which the jura privatum was forfeited by the laws of war. (Johnson v. McIntosh, supra.)

V

THE TITLE NOT AFFECTED BY CLAIMS OF OTHER NATIONS IN PRE-REVOLUTIONARY

TIMES

It is evident that no rights of property in or dominion or jurisdiction over the Tennessee River in Alabama, whether the stream was navigable or otherwise, were in any manner affected by royal charters. Neither were they influenced by claims of other governments in pre-Revolutionary times. The conflicting claims of France, Spain, and England were all adjusted in 1763 by the treaty of Paris, which terminated the French occupation of the territory of northern Alabama and England came into undisputed possession thereof. It is doubtful that the claims of Spain ever extended as far as

northern Alabama, or any further, in fact, than the thirty-first degree north latitude; but, however that may be, no material consequence would follow, as is clearly shown in the case of Pollard's Lessee v. Hagan et al. (3 How. 212.) In that case the question arose as to whether Alabama was entitled to the shores of the navigable tide waters and the soils under them within her limits. Against such right it was argued that the United States acquired the land in controversy from the King of Spain by virtue of a treaty under which it was contended the United States succeeded to all the rights and powers of the King of Spain, but the court, at page 225, said:

If it were true that the United States acquired the whole of Alabama from Spain, no such consequences would result as those contended for. It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to excrcise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it.

It was further observed by the court that the United States had never claimed any part of the territory included in the States of Mississippi or Alabama under any treaty with Spain, although that country claimed at different periods a considerable portion of the territory in both of those States. A treaty between the United States and Spain entered into on the 27th day of October, 1795, was referred to as determining the boundary line dividing east and west Florida and which did not import to be a cession of territory, but at the same time was understood to be an admission that the right was originally in the United States. Reference was made to previous decisions of the Supreme Court and it was then declared that "these cases established, beyond controversy, the right of the United States to the whole of this territory under the treaty with France." The court, at page 228, concludes "Alabama is therefore entitled to the sovereignty and jusdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded to the United States."

Georgia claimed all the lands between the thirty-first and thirty-fifth parallels from its present western boundary to the Misissippi River. This was ceded to the United Stated in 1802. Two years later the boundaries of the Mississippi Territory (including northern Alabama), recognized by Congress as Mississippi Territory, were extended so as to include all of the Georgia cession. In 1817 Mississippi Territory was divided, the western portion became the State of Mississippi and the eastern the Territory of Alabama.

In 1819 Alabama was regularly admitted into the Union as a State. Speaking of the cession made by Georgia to the United States, the act of Congress of March 3, 1817, recognizing the Mississippi Territory and the enabling act of the State of Alabama approved March 2, 1819, the court in Pollard v. Hagan, supra, at page 227, said:

By these successive acts on the part of the United States, the common law has been extended to all the territory within the limits of the State of Alabama, and therefore excluded all other law, Spanish or French.

At the close of the Revolutionary War such States as were carved out of territory embraced in then existing royal charters succeeded to all rights of property, kingly prerogatives and powers of government granted thereunder by the Crown. That where such charters