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 Alabama 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 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 "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 of war * * * 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. 4 SE. 4 sec. 7, and fractional NE. 4 SE. 14 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. 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. 661⁄2 W. 9.46; S. 71% W. 8.50; S. 691⁄2 W. 5.75; S. 72 W. 7.00; S. 831⁄2 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: 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. 1⁄2 of the NE. 4 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 |