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LEGAL RIGHTS OF THE UNITED STATES AND THE STATE OF

ALABAMA IN THE MUSCLE SHOALS PROJECT

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

A Discussion of the Legal Rights of the United States in the Muscle Shoals Project With Specific

Reference to the Wilson Dam and Power Plant at Sheffield, Ala.; and the Claims of the State of Alabama in Relation Thereto

I

ALABAMA'S CLAIMS It is contended by the State of Alabama (1) that the portion of Wilson Dam and power plant which rests upon the bed of the Tennessee River stands upon the property of the State of Alabama and that therefore the State owns an equity in said dam and power plant and is entitled to an equitable share of any proceeds realized from the sale of lease of hydroelectric power there generated; (2) that other than such power as is used in the operation of the plant and such revenue as may be necessary to properly maintain the plant, the State is entitled to the current generated by and the revenue derived from the operation thereof; and (3) that while it is conceded by Alabama that the United States had the right to build the dam for the improvement of navigation and the right, in time of war, to seize for national defense purposes private property for which compensation is made, the Wilson Dam and power plant can not be properly used in time of peace as a plant to generate electric current for commercial use unless Alabama's interests are recognized and protected. (Statement by Muscle Shoals Commission of Alabama, prepared by John S. Tilley, attorney for said commission, pp. 73, 74.)

A memorial, addressed to the President of the United States in the early part of March, 1927, by the Muscle Shoals commission and the Governor of Alabamá contains the following statement (see Exhibit A):

Subject only to the authority of the United States relative to navigation and war purposes; the State of Alabama claims absolute title 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 anywise incident thereto or arising therefrom.

II

WILSON DAM

The construction of the Wilson Dam at Muscle Shoals was authorized by the President of the United States on February 23, 1918, pursuant to the act of June 3, 1916, chapter 134, section 124, Thirtyninth Statutes, pages 166 and 215 (see United States Code, title

of war

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“War," sec. 79), known as the national defense act. Under the terms of this act the President was empowered to make investigation for the purpose of determining the "best, cheapest, and most available means for the production of nitrates and other products for munitions

to designate for the exclusive use of the United States

such site or sites, upon any navigable or nonnavigable river or rivers or upon the public lands, as in his opinion will be necessary for carrying out the purposes of this act; and * 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

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." (See Exhibit B.)

The Muscle Shoals project consists of nitrate plants Nos. 1_and 2 in Colbert County, Ala., and the Wilson Dam designated as Dam No. 2 across the Tennessee River near plant No. 2. The construction of the plants was begun in 1918, and they, together with the Wilson Dam, were in due course completed. The lands upon which these plants were being erected were being acquired during the time construction was going on. Most of them were acquired by direct purchase from the property owners; some were acquired through condemnation suits. The flowage rights over most of the lands up the river were acquired by direct purchase and through condemnation proceedings

Wilson Dam is a concrete monolith extending from bank to bank of the Tennessee River at Muscle Shoals and crossing Jackson Island, which is in the middle of the stream. The north end of the dam is constructed upon the uplands adjoining the river in fractional section 7, and the south end rests upon uplands in fractional section 18, township 3 south, range 10 west, Huntsville principal meridian. It is 100 feet in height; has two locks for navigation, with a lift of 45 feet. A section of the dam 1,400 feet in length is erected on the river bed north of Jackson Island and a section 1,800 feet in length stands on the river bed south of the island. The power plant, which is a part of the dam, is located on the bed of the stream.

III

THE TITLE On July 28, 1920, the United States purchased from Muscle Shoals Hydro-Electric Power Co., a corporation of Alabama, a part of fractional section 7, township 3 south, range 10 west, Huntsville principal meridian, lying north of the Tennessee River, and a part of fractional section 18, same township and range, lying south of the Tennessee River. Prior to this time, namely, on June 3, 1918, the United States had purchased from Thomas F. Jones a part of what is known as Jackson Island, located near the middle of the stream and across which the Wilson Dam has been constructed.

The conveyance from Muscle Shoals Hydro-Electric Power Co. described the land lying north of the river as follows:

Fractional NW. 44 SE. Y4 sec. 7, and fractional NE. 14 SE. 44 sec. 7, T. 3 S., R. 10 W., Huntsville principal meridian, liyng north of the Tennessee River, and containing 41.28 acres, more or less.

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