AGO 1996-140.

• Case Date: February 23, 1996
• Court: Alabama

Alabama Attorney General Opinions 1996. AGO 1996-140. 1996-140February 23, 1996Honorable James D. Martin Commissioner Department of Conservation and Natural Resources 64 North Union Street Montgomery, AL 36130 Conservation and Natural Resources Department - Easements - State Departments and Agencies - Competitive Land Sale ActDepartment of Conservation and Natural Resources has the authority to grant an easement across the Alabama River for the construction and operation of a toll bridge. An easement for the construction and operation of a toll bridge across the Alabama River is excepted from the requirements of Act No. 95-280, codified as Code of Alabama 1975, _ 9-15-82.Dear Commissioner Martin: This opinion is issued in response to your request for an opinion from the Attorney General. QUESTIONS 1. Does the Department of Conservation and Natural Resources have the authority to grant an easement for the construction and operation of a toll bridge across the Alabama River? 2. Do the requirements of Act No. 95-280 apply to the granting of an easement for the construction and operation of a toll bridge, or would such an easement be exempt under Section 13 of the Act? FACTS, LAW AND ANALYSIS Under the Equal Footing Doctrine, the State of Alabama, upon admission to the Union in 1819, acquired title to lands underlying navigable waters within the State's boundaries. Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). The State continues to claim ownership of the beds of all navigable waterways. Section 9-15-2, Code of Alabama 1975, places jurisdiction and control of all unused lands with the Department of Conservation and Natural Resources. Section 9-15-1, Code of Alabama 1975, defines "unused lands" as: "[L]ands not utilized for the immediate purposes of any institution or department, not being cultivated, leased or mined and not contiguous to the premises of any department or institution or state building." The Legislature clearly intended that submerged lands fall within the definition of unused lands as is demonstrated by the recently amended language of _ 9-15-15, Code of Alabama 1975, providing for the disposition of revenue from unused lands. The Section provides in pertinent part that: "[I]f the land shall be owned absolutely by the State of Alabama, and shall consist of submerged land, the revenue from the use of...