Name:   Otter - Subject:   Legal Right to 90 Feet Into the Lake? Date:   5/14/2018 12:47:28 PM

I purchased my lakefront lot back in the 80's from a very prominent partner of a large law firm in Montgomery (and long time Lake Martin property owner).  The land had never been owned by Alabama Power or Russell lands, but, was land that had been deeded directly to a prior owner in lue of payment for land that was flooded by the lake.  When the lake was originally flooded, it is my understanding that people who lost land were either compensated in cash equivelent or given lakefront in-lue of cash payment.  So, there was lakefront that was never owned by Alabama Power or Russel Lands.

The relevance of this is as follows:  If I understand what this attorney has informed me correctly, lakefront land that has never been owned by Alabama Power or Russell Lands does not have any deed restrictions from either of those entities on the land, in terms of setbacks, etc.  For example, on my lot, I do not have to comply with getting a permit from Alabama Power to construct a structure even right up to the 491 elevation and they have no legal authority to keep me from doing so.  I have already had conversations with the Alabama Power permitting people and they did not disagree with this position.  However, their position is, if something extends beyond the 491 foot elevation, that is, out over the water, I am required to have or acquire a permit and am required to abide by their rules.  O.K. so far, that that is what I have always done.

However, according to this attorney that I purchased my land from, if I understand him correctly, there is something that is called a "90 foot fee" or something like that, that, on land such as mine, extends 90 feet into the water from the 491 elevation.  His opinion, as I understand it, is that, unless Alabama Power acquired that "90 foot fee" at some point in the title's history, I have an easement to do whatever I like extending 90 feet into the lake, and no permit is required.

A case in-point.  This attorney told me that years ago, his neighbor had a permanent floating dock made of wood anchored to the bottom of the lake about 40 feet from the shorline of his property.  Alabama Power ordered this neighbor to remove the floating dock.  This attorney took case, did the title research, showed Alabama Power that they had never owned the land or acquired this 90 foot fee, and although it never went to court, Alabama Power backed off and the neighbor kept his floating dock in the lake.

I had this attorney do a title search again on the property that I purchased from him and this is what he told me in the letter resonding to my inquiry.  He said that from his research, my property is "subject to flood rights of Alabama Power Company" but there is no record of the power company having acquired the fee for 90 feet.  In other words, his position is that if Alabama Power cannot show that they acquired this fee for 90 feet, then I am not subject to their permitting requirements or regulations on docks, etc. that I put in the lake within 90 feet of the 491 level extending out into the lake.

I also heard that back just prior to 2008, Alabama Power tried to restrict a developer who wanted to build condos by restricting the number of docks this developer could put in.  This developer supposedly went to court, and presented pretty much the case that I just made for his land, and supposedly won the suit to put in as many docks as he wished as Alabama Power had never acquired the 90 foot fee on this land.  I don't don't know if this is true or not, just something that I have heard a couple of times.  

Question...has anyone out there any knowledge on what I have presented and/or does anyone know the name of this developer that supposedly sued Alabama Power on these grounds and won?  I would lke to learn more.

Thanks,