"To
the Honorable Thomas H. Smith, Chancellor for the
Southwestern Chancery Division of the State of Alabama
Sitting for the Thirteenth District: The bill of complaint
of Mamie L. Turner, wife of Freeman C. Turner, and Emma B
Morris, wife of Thomas B. Morris, residents of Mobile
county, Alabama, who exhibit this bill of complaint in
their own behalf, as well as on behalf of all others
similarly situated as oratrices are in respect of the
subject-matter of the controversy relating to the lands
lying below ordinary high tide water mark of the Mobile
river, within the corporate limits of the late municipal
corporation of Mobile under its charter of 1866, against
the city of Mobile, a municipal corporation in said county
of Mobile, and thereupon your oratrices showeth unto your
honor.
"First.
That your oratrices own as tenants in common, in equal parts
or shares, the property hereinafter described in this bill
which they acquired from their father, the late William J.
Hearin, deceased, who for many years next preceding his death
had owned said property, and all the rights, privileges,
easements, and appurtenances thereunto belonging, or
appertaining thereto. That on December 21, 1900, the city of
Mobile, the respondent to this bill, brought a statutory
action in the nature of an action of ejectment against your
oratrices in the circuit court of Mobile county, Alabama, to
recover the possession, and one thousand dollars ($1,000) for
the detention, of that certain tract of land situated in the
city and county of Mobile, state of Alabama, and more
particularly described as follows, to wit: Beginning at a
point at the intersection of the east line of Commerce street
with the south line of Elmira street, and running thence in a
southerly direction along the east line of Commerce street
for a distance of two hundred and twenty (220) feet and ten
(10) inches, to a point; thence in an easterly direction
along a line parallel with Texas street to the channel of the
Mobile river; thence in a northerly direction along the
channel of the Mobile river to the point of intersection of
the channel of the Mobile river with the southern boundary
line of Elmira street extended; thence westwardly along the
southern boundary line of Elmira street extended to the place
of beginning; the same being known as lots numbered 1, 2, 3,
4, and 5 of block number 166 of a plat made by Dean Knox.
"Second.
Your oratrices aver, upon information and belief, and so
charge, that the city of Mobile asserts that the legal title
to said property is in said city of Mobile, and oratrices
charge, upon information and belief, that the city of Mobile
claims said title as follows, and not otherwise, to wit: That
the said land sued for lies between what was the ordinary
high tide water mark at the time Alabama was admitted into
the Union as a state, and the channel of the Mobile river, a
navigable tide water stream, and that prior to the admission
of Alabama into the Union the title was in the United States,
and that, upon the admission of Alabama into the Union, the
title to this land, being part of the shore of the navigable
waters, became vested in the state of Alabama. That the state
of Alabama granted said land to the city of Mobile by an act
of its legislature approved on January 31, 1867 (Acts
1866-67, p. 307), which said act is as follows, to wit:
"
'An act granting to the city of Mobile the riparian
rights in the river front.
"
'Section 1. Be it enacted by the senate and house of
representatives of the state of Alabama in general assembly
convened, that the shore and the soil under Mobile river,
situated within the boundary lines of the city of Mobile,
as defined and set forth in section two of "An act to
incorporate the city of Mobile," approved February 2d,
1866, be, and the same is hereby, granted and delivered to
the city of Mobile.
"
'Sec. 2. Be it further enacted that the mayor,
aldermen, and common council of the city of Mobile be, and
are hereby, created and declared trustees to hold, possess,
direct, control, and manage the shore and soil herein
granted, in such manner as they may deem best for the
public good.
"
'Approved January 31st, 1867.'
"That
the said present city of Mobile claims to be the corporate
successor of the former city of Mobile, to whom said land
was granted by the said act of January 31, 1867, and said
city of Mobile claims that the absolute and unconditional
title to said land was vested in it by virtue of an act of
the legislature of Alabama approved February 18, 1895 (Acts
1894-95, p. 815), which was amended by an act approved
December 5, 1896 (Acts 1896-97, p. 49), and which said act
as amended is as follows, to wit:
"
'An act to amend an act entitled "An act to fix
the right of the city of Mobile to certain real
estate." Approved February 18th, 1895.
"
'Section 1. Be it enacted by the general assembly of
Alabama, that an act entitled "An act to fix the
right of the city of Mobile to certain real estate,"
approved February 18th, 1893, be, and the same is hereby,
amended so as to read as follows: Section 1. Be it
enacted by the general assembly of Alabama, that the
absolute and unconditional title and right to all real
estate, rights and easements, pertaining, or incidental,
to any real estate, or any right therein, or thereto,
heretofore vested in the mayor, aldermen and common
council of the city of Mobile or in the port of Mobile,
or in the present city of Mobile, or in any municipal
corporation of Mobile however said corporation may have
been named or called, whether held in trust, or
otherwise, except such as have heretofore vested in the
trustee for the holders of the bonds of the city of
Mobile, is hereby vested absolutely, and unconditionally
in the city of Mobile, to be by it held, managed,
controlled and disposed of, as to it may seem best.
"
'Sec. 2. Be it further enacted, that the said city of
Mobile be, and is hereby authorized and empowered to
contract and arrange with such person or persons, as it may
think proper upon such terms as may seem best to it, for
the ascertainment, location and recovery of any part or the
whole, of such property and the rights hereby vested in it
and may, if it thinks proper to do so, convey to such
person or persons an interest in said property and rights,
as compensation for his or their services in such matters.
"
'Approved December 5th, 1896.'
"And
your oratrices, upon information and belief, charge that
the said city of Mobile asserts and claims that it acquired
the absolute title to said described property sued for by
virtue of said acts of the legislature of the state of
Alabama, and that it relies to recover in its said
ejectment suit upon the facts herein set forth, and does
not claim any title to said land otherwise.
"Third.
Your oratrices further show unto your honor that the
legislature of Alabama passed an act which was approved
February 11, 1879 (Acts 1878-79, p. 381), entitled 'An
act to vacate and annul the charter and dissolve the
corporation of the city of Mobile, and to provide for the
application of the assets thereof in discharge of the debts
of said corporation,' the first section of which said
act is as follows, to wit: 'Section 1. Be it enacted by
the general assembly of Alabama, that the act entitled
"An act to consolidate the several acts of
incorporation of the city of Mobile, and to alter and amend
the same," approved February 2d, 1866, and all acts of
a date subsequent thereto altering and amending the said
act, and all other acts incorporating the city of Mobile,
or in conflict, or inconsistent with the provisions of this
act be and the same are hereby repealed, and the
corporation of the city of Mobile, known and styled as the
mayor, aldermen and common council of the city of Mobile,
is hereby dissolved and abolished.' The second section
of said act provides for the appointment of commissioners
to take possession of the property of said late municipal
corporation, and the third section of said act is as
follows, to wit: 'Sec. 3. Be it further enacted said
commissioners shall at once enter upon and take possession
of all the property, real and personal, which, prior to the
passage of this act, belonged to the mayor, aldermen and
common council of the city of Mobile, and shall also have,
demand, and receive and collect all the choses in action,
debts, claims and demands of all kinds and of every name
and nature, including all sums of money for taxes before
the passage of this act lawfully assessed, levied or laid
by said mayor, aldermen and common council of the city of
Mobile, and which said corporation was, on said last
mentioned day, entitled to have, demand, receive and
collect from any person or persons, company or companies,
corporation or corporations, property or properties,
business, employment, or occupation whatsoever, and which
were then not paid or otherwise lawfully discharged, and
they shall realize and collect all said debts, claims, and
demands at as early a date as practicable, and apply the
same and the proceeds thereof to and for the uses,
purposes, and objects in this act declared; but nothing in
this act contained shall be construed to vest in said
commissioners any power or authority to lay or levy any tax
or assessment upon any property, polls, business, or
occupation, or to demand, receive, or collect any
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