The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1912-08-13
SENATOR ALLEN ON
STATES OWNERSHIP
Entitled to All Income From
Water Power
SUSTAINS MR.. BEASLEY
Florence Man Says This Opinion Is
Upheld by Numerous Supreme
Court Decisions-Cites
Number of Cases
SUSTAINS MR.. BEASLEY

| 10 the f4ultOT OF l0e ABe-f1eIdlu.
experimenting what you have so well
said in your editorial of the 10th on the
Power Development in Alabama Rivers, y
your quotations from Senator Beasley or
the subject and in support of his posi-
tion l would like to add few remarks
hoping thereby to call the subject to the
attention OF some of the good lawyers
now representing Alabama in the House
of Representatives, who will look into the
subject and bring out it's merits.
You say, Senator Beasley of Fayette
takes the position that while the general
government has right to improve nav
igation, it has no right to sell single
horse power of the energy found in fall
ing water"
He is absolutely right in this position.
not only right, but is backed in his posi-
ton by many decisions of the United
States supreme court, as shall show be-
fore 1 am through.
The doctrine at common law Is that a
grant of land upon the borders of a navi-
gable stream carried the grant only to
high water mark, while with us grant
of land bordering upon navigable stream
carries the ownership to the center or
thread of the stream, subject to public
easement. See Harding VS. Jordan 40 L.
S. 3S4.
The court says: THE United States have
not repealed the common law as to the
Interpretation of their own grants, nor ex-
planned what Interpretation or limitation
should be given to or imposed upon the
terms of the ordinary conveyance they
use, except In a few special instances;
hut hos Lea ,1,1.a
and rules adopted by each local govern
ment where the land may ie." And the
court going on TO define the various inter
ests says: THE title to the bed of the
stream and whether the title to the bed
of the stream Is in the riparian owner or
in the state in either case the general
title 10 the water of the stream is deemed
to be in the state, but 1t holds it not alb
solutely but In trust for the lawful pub
lie uses. The states interest in such a
stream is akin to that of the riparian
owner. though more comprehensive and
general in its nature and does not exist
in hostility to or diminution of the ripa-
rian owner. See Martin vs. Waddell, 10
Peters. 367
There are three different owners of in
terests In the waters of a nayigable
stream
% The United States. CD The state in
which the stream is located, and 90 the
riparian owner.
The United States derives its power and
ii rests upon that provision of the consti-
tuition which gives Congress the power
to regulate interstate commerce. and this
power only extends to its conservation of
the navigable streams beyond that the
United States has no interest or property
in the stream.
The interest of the state In the stream
Is derived from its sovereignty-the right
of eminent domain--and II holds its prop
erty in the stream Sin trust for all public
uses, but in subrogation to the rights of
the federal government as to navigation
and of the riparian owner
The right TO the use of the water of a
stream, for any lawful purpose, outside of
the right of navigation, belongs wholly 10
the state and the riparian owner. See
Martin VS.. Waddel, is Peters, 1867.
The title TO the waters In a navigable
stream, within the borders of state, is
not in the federal government but In the
state; and title to the banks and beds
OF the stream, after the federal govern
ment has parted with its riparian lands, Is
either in the state or in the riparian owner
or both. according 10 the law of that par
ticular state
Not only have these principles been well
settled In the case above cited, but re-
affirmed by the United States supreme
court IN Inc case or kaukaAnd water
Power company VS.. Green Bay and Mis-
sissippian Canal company, 142 U. s.. 254;
also ISean VS.. Calumet Canal company,
1870 u. s., 452, and as late as April 20, 1903,
In the case of United States VS. the
Chandler Dunbar Water Power company,
again reaffirmed and the principles well
established; and also in the case of KAN
sas VS.. Colorado. FOG &. S.. 4s, the court
says: When the federal government Is
not interested as the owner of riparian
lands, the only interest It has in the
water Of stream is as to Its use for
navigation, and 1t can lay no claim to the
use of the water for any other purpose
not even Irrigation
have only referred to the leading cases
on this subject; many more cases can be
cited, both state and United States SUI
pr eme court, In this connection.
The water powers of the state are more
valuable than her coal. and now that mil
lions OF money are knocking at our doors
to be allowed to develop these water
powers. 1t is a crying shame that Con-
gress does not enact such legislation as
will enable those desiring so to do to de-
velop these water powers to their full ca
pacity.
Does II not strike you that some of our
near statesmen In Congress might bet
ter apply their time by getting some prac-
tical legislation that would be of benefit
to the state and reflect honor on them
rather than wasting their time on free
trade vagaries'' and other things that are
wild and fanciful?
THURSTON II. ALLEN.
Florence, August ~, 1872.