NEW JERSEY v. NEW YORK
No. 120, Orig.
Supreme Court of the United States
Argued January 12, 1998—Decided May 26, 1998
523 U.S. 767
No. 120, Orig. Argued January 12, 1998—Decided May 26, 1998
Joseph L. Yannotti, Assistant Attorney General of New Jersey, argued the cause for plaintiff. With him on the briefs were Peter Verniero, Attorney General, and Robert A. Marshall, Patrick DeAlmeida, and Rachel Horowitz, Deputy Attorneys General.
Jeffrey P. Minear argued the cause for the United States as amicus curiae. With him on the brief were Acting Solicitor General Waxman, Assistant Attorney General Schiffer, and Deputy Solicitor General Kneedler.
Daniel Smirlock, Assistant Attorney General of New York, argued the cause for defendant. With him on the briefs were Dennis C. Vacco, Attorney General, Barbara G. Billet, Solicitor General, and Peter H. Schiff, Deputy Solicitor General.*
JUSTICE SOUTER delivered the opinion of the Court.
An 1834 compact (hereinafter Compact) between the States of New York and New Jersey provided that Ellis Island, then a modest three acres, was part of New York despite its location on New Jersey‘s side of the States’ common boundary. After 1891, when the United States decided to use the Island to receive immigrants, the National Government began placing fill around its shoreline and over the next
I
In April 1993, New Jersey invoked this Court‘s original jurisdiction to try a dispute over its territorial jurisdiction, see
A
Ellis Island lies in New York Harbor 1,300 feet from Jersey City, New Jersey, and one mile from the tip of Manhattan. At the time of the first European settlement it was mostly mud, sand, and oyster shells, which nearly disappeared at high tide. The Mohegan Indians called it “Kioshk,” or Gull Island, while the Dutch of New Amsterdam, after its thrifty acquisition, renamed it (along with two other nearby specks) for the oyster, in recognition of the rich surrounding beds. England seized it from the Dutch in 1664, the same year that Charles II included the Island in a grant to his brother, the Duke of York, of the land and water of the present States of New York and New Jersey. The Duke in turn granted part of this territory to Lord Berkeley and Sir George Carteret, the proprietors of New Jersey, whose domain was described as “bounded on the east part by the main sea, and part by Hudson‘s river.”
Having wasted no words, the noble grantor all but guaranteed the succession of legal fees and expenses arising from
In the meantime, the two neighboring States tried to settle their controversy. In 1807, each appointed commissioners to prepare a compromise agreement, and when none was forthcoming the States allowed the controversy to simmer for another 20 years, when new commissioners were appointed. After they, too, had failed to agree, in 1829 New Jersey decided to seek a judicial resolution and filed suit against New York to establish its “rights of property, juris-
Although we took jurisdiction over the suit, New Jersey v. New York, 5 Pet. 284 (1831), it was never tried to judgment. Instead, the States once again negotiated and in 1833 actually reached agreement. Each enacted the terms into law, 1834 N. Y. Laws, ch. 8; 1833-1834 N. J. Laws, pp. 118-121, and jointly they sought the approval of Congress under the Compact Clause of the
The Compact comprises eight articles, the first three of which directly concern us here. Article First sets the relevant stretch of the “boundary line” between New York and New Jersey as the middle of the Hudson River “except as hereinafter otherwise particularly mentioned.” Article Second provides that “New York shall retain its present jurisdiction of and over Bedlow‘s1 and Ellis‘s islands; and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that state.” Under Article Third, “New York shall have and enjoy exclusive jurisdiction of and over all the waters” between the two States as well as “of and over the lands covered by the said waters to the low water-mark on the westerly or New Jersey side thereof.” This
We have already addressed the meaning of some of these terms in Central R. Co. of N. J. v. Jersey City, 209 U. S. 473 (1908), where we held that Jersey City, New Jersey, was authorized to tax the submerged lands lying between the middle of New York Harbor and the low-water mark on the New Jersey shore. As expressed in an opinion by Justice Holmes, we determined that the “boundary line” set by Article First is the line of sovereignty between the two States, and that the islands in the waters between them fell on New Jersey‘s side of the boundary. Id., at 478. We held that even though Article Third grants New York “exclusive jurisdiction” over all the land and water between the States, New Jersey retained “ultimate sovereign rights” over the lands submerged beneath the waters. Id., at 478-479. We noted that the term “jurisdiction” was used in a broader sense in Article Second (relating to the islands) than in Article Third (relating to water and submerged land west of the center line), the purpose of the latter being “to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of Article I.” Id., at 479. We said that “[w]hether . . . some power of police regulation also was conferred upon New York [by the third article] . . . need not be decided now.” Ibid. Finally, we explained that the provision for Ellis and Bedlow‘s Islands,
In the years after the Compact, the National Government continued to use the Island as a fortress until 1861, when it dismantled the fortifications but proceeded to use the Island for a munitions magazine and a berth for ships defending the harbor. In the 1880‘s, however, came a radical change. Although the National Government had left the control of immigration largely to the States up to that time, the swelling number of immigrants were overwhelming the state systems, to the point of leading Washington to impose national regulation. While immigrants to New York and New Jersey had traditionally come ashore at Castle Garden, located in Manhattan and owned and operated by New York, Congress decided that an island would be an ideal place for a new immigration station “in view of the frauds, robbery, and general crookedness which seemed to be inseparable from the landing of immigrants.” N. J. Exh. 488, p. 5 (V. Stafford, Immigration Problems: Personal Experiences of an Official 22 (1925)). Ellis Island turned out to be the one chosen.
The Island also turned out to be too small, and by the time the new Ellis Island immigration station opened in January 1892, the United States had already added enough fill to the surrounding submerged lands to double the original three acres. By 1897, the Island was up to 14 acres and would go on growing for almost 40 years more.
Because the hospital of 1900 could not provide sufficiently isolated wards for patients with contagious diseases, these patients were sent to New York City for care and treatment. When, in 1902, the City Health Department announced it would no longer receive such immigrants, the United States had to provide its own contagious disease hospital, which it planned to build on a third island to be joined to Island No. 2 by another gangway. Construction stopped, however, when New Jersey challenged the National Government‘s appropriation of the submerged lands surrounding the Island. The dispute was not resolved until December 1904, when New Jersey‘s Riparian Commissioners conveyed to the United States “all the right, title, claim and interest of every kind, of the State of New Jersey” to 48 acres of territory that included and surrounded Ellis Island, in exchange for $1,000. Deed from the State of New Jersey to the United States of America, Recorded, County of Hudson, State of New Jersey, Dec. 23, 1904. The United States then pressed on with construction and in 1906 completed the new island of 4.75 acres, often called Island No. 3. Here the new contagious disease hospital was constructed in 1909 and occupied by 1911.
Two acres more were added in the 1920‘s when the United States filled the dock basin between Island Nos. 2 and 3, and in 1934 more fill was placed on the northern side of the origi-
Ironically, however, as the land rose immigration fell. Although more than 12 million people disembarked at Ellis Island from 1892 to 1954, arrivals dropped from a high point of roughly 5,000 daily in 1907 to only 200 a day in 1954, and in November of that year the Immigration and Naturalization Service (INS) closed the Island station.
Soon after immigration was thus diverted from the Island, the United States General Services Administration (GSA) classified the property as surplus and entertained various proposals for using the Island as a home for educational institutions, as a clinic for alcoholics, as a historical site for public recreation, and as a facility for the mentally retarded. Prospects for the Island‘s future were clouded, however, by the fact that New York and New Jersey each carried the Island on its tax rolls and announced its intention to collect taxes if a private owner took over the Island. Although the GSA noted sanguinely that “[t]he question of whether the property will be subject to taxes by the State of New Jersey when it becomes eligible for taxation is one to be resolved between the State of New Jersey and the grantee after the disposal of the property has been consummated by the United States,” N. J. Exh. 117 (letter from Administrator, GSA, to Sen. Clifford P. Case, dated Jan. 28, 1958), there was clear reason to fear that the tax dispute would kill any disposition the United States might like to make. In 1960, the Council of State Governments tried to mediate the jurisdictional dispute, but negotiations simply came to impasse. N. J. Exh. 134 (letter from Regional Director, Council of State Governments, to Associate General Counsel, GSA, dated July 28, 1960).
After the GSA had offered the Island for sale on the commercial market several times, the Secretary of the Interior decided in 1964 that the Government should stop trying to
B
In its complaint, the State of New Jersey seeks a declaration that the boundary between the two States on the Island follows the high-water mark of the original Island, that the original Island is within the territory and jurisdiction of New York, and that the balance of the Island, as well as the waters surrounding it, is within the territory and general jurisdiction of New Jersey. New Jersey also asks for a permanent injunction prohibiting New York from enforcing its laws on the filled land or asserting jurisdiction over it.
After concluding that New York‘s sovereign authority was limited to the original area of the Island, the Special Master went on to determine its exact dimensions, which he pegged to the mean low-water mark of the original Island, although he recommended that the area covered by a pier extending from the shore at the time of the Compact be treated as part of the original Island. Finally, the Special Master recommended, “[i]n the interest of practicality, convenience, and
New York and New Jersey each excepted to the recommendations. New York‘s exceptions amount to the following claims: (1) under Article Second of the Compact, New York has jurisdiction over the filled portion of the Island; (2) New York has obtained sovereignty over the filled land through its exercise of prescriptive acts and New Jersey‘s acquiescence in that exercise; and (3) New Jersey is chargeable with laches through its delay in bringing this action. New Jersey‘s exceptions in effect state the following claims: (1) New Jersey is sovereign over the filled portions of the Island to the mean high-water line, not the mean low-water line, as it was when the Compact was adopted; (2) the record contains no credible evidence to support the Special Master‘s conclusion that the pier on Ellis Island in 1834 was partially built on landfill, so as to place its area within New York‘s jurisdiction; and (3) the present boundary across the Island must follow the 1834 line, the Court having no authority to modify that line to address considerations of practicality and convenience.
II
First we address New York‘s exceptions. Although that State would be entitled to a declaration of its ultimate sovereignty over the filled land if successful on any of the points raised, we find each to be meritless.
A
New York‘s first exception rests on Article Second of the Compact, the provision that “[t]he state of New York shall retain its present jurisdiction of and over Bedlow‘s and Ellis‘s islands; and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that state.”
New York concedes that at the time of the Compact the submerged land around the Island was under the sovereign authority of New Jersey. But New York argues that because the Compact recognized its own sovereign authority over “Ellis Island,” without describing that land mass in metes and bounds, the recognition of sovereignty extended to whatever area the Island so called might be enlarged to cover; that is, once any submerged territory was filled and became fast land contiguous to the original Island, it became subject to the New York sovereignty recognized in Article Second. New York rests its position on an allegation that in 1834 adding landfill to subaqueous land adjacent to fast land in New York Harbor was such a common practice as to render it unnecessary to mention it in Article Second of the Compact or otherwise make provision for its legal consequences. New York also argues that the parties who agreed
The arguments are unavailing. To begin with, the absence of any description of the Island in metes and bounds is highly dubious support for any inference beyond the obvi-
Nor can we draw any conclusion in New York‘s favor from the failure of the Compact to address the consequences of landfilling, however common the practice may have been.5 There would have been no reason to do so, simply for the reason that the legal consequences were sufficiently clear under the common law as it was understood in 1834.6 In this case, as in Georgia v. South Carolina, 497 U. S. 376, 404 (1990), the expansion of the Island “was not caused by either of the adjoining States, but by the United States Army Corps of Engineers.” Under the common law, a littoral owner, like the United States in the instant case, “cannot extend [its] own property into the water by landfilling or purposefully causing accretion.” Ibid. (citing Seacoast Real Estate Co. v. American Timber Co., 92 N. J. Eq. 219, 221, 113 A. 489, 490 (1920)); see also United States v. California, 381 U. S. 139, 177 (1965) (referring to “the rule of property law
B
On the assumption that Article Second or some other Compact provision fails to carry the day for New York, the State
New York‘s amicus curiae the City of New York suggests that under United States v. California, 381 U. S. 139, 176 (1965), a State may unilaterally alter its boundary line by artificially extending its coastline. Brief for City of New York as Amicus Curiae 25. That case, however, involved the interpretation of the Submerged Lands Act,
As between two sovereigns, jurisdiction may be obtained by one through prescriptive action at the other‘s expense, over the course of a substantial period, during which the latter has acquiesced in the impositions upon it. See Illinois v. Kentucky, 500 U. S. 380, 384-385 (1991); Georgia v. South Carolina, 497 U. S., at 389; Arkansas v. Tennessee, 310 U. S. 563, 570 (1940); Vermont v. New Hampshire, 289 U. S. 593, 613 (1933); Louisiana v. Mississippi, 202 U. S. 1, 53 (1906); Virginia v. Tennessee, 148 U. S. 503, 522-524 (1893). “For the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary.” Rhode Island v. Massachusetts, 4 How. 591, 639 (1846). The doctrine of prescription and acquiescence “is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it.” C. Phillipson, Wheaton‘s Elements of International Law 269 (5th ed. 1916). From such expectations, in part, have we derived “moral considerations which should prevent any disturbance of long recognized boundary lines; considerations springing from regard to the natural sentiments and affections which grow up for places on which persons have long resided; the attachments to country, to home and to family, on which is based all that is dearest and most valuable in life.” Virginia v. Tennessee, supra, at 524.
As the proponent of the defense, New York is in the position it would occupy if it had itself brought an original action claiming title under the doctrine; thus it has the burden to
It is essential to appreciate the extent of this burden that a claimant by prescription must shoulder. Even as to terra nullius, like a volcanic island or territory abandoned by its former sovereign, a claimant by right as against all others has more to do than planting a flag or rearing a monument.
Before turning to the evidence, a word must be said on one threshold issue, on which the parties agree. As the Special Master thought, the time period during which New York‘s prescriptive acts ripened into sovereignty, if they did at all, is 1890 to 1954. The United States added no fill to the original Island until 1890, and after 1954 it is undisputed that New Jersey vigorously asserted its own sovereignty over the filled portions of the Island. At most, then, New York may rely upon exercises of dominion over the made land with New Jersey‘s consent for 64 years,10 a period that is not insufficient as a matter of general law. To be sure, we have never established a minimum period of prescription necessary to perfect a jurisdictional claim over another State‘s territory, and it is clear that “no general rule can be laid down as regards the length of time and other circumstances which are necessary to create a title by prescription. Everything depends upon the merits of the individual case. . . .
The evidence that has come through the door, however, is too slight to support any finding of prescription. At the outset, we note that two facts exact a discount from the probative force of much of the evidence New York presents. First, as between New York and New Jersey, New York is concededly vested with whatever state sovereignty may be exercised over the original portion of the Island. Second, throughout the entire period of arguable prescription, the Island was entirely occupied by the United States.
We have already seen that Article Second of the Compact recognizes New York‘s then-existing jurisdiction over Ellis Island and Bedlow‘s Island as well as its exclusive jurisdiction over the other islands then on New Jersey‘s side of the boundary. So long as the original Island was all that went by the name of Ellis, there was no question about the referent of any indication of jurisdiction over Ellis Island. But after the Island grew, acts expressly pertaining to the Island but falling short of physical occupation became to a degree vague in the absence of further indication that their subject was the new land as well as the original territory.11 Thus, every reference to “Ellis Island” on a New York tax roll or
Second, it is well to realize how far the presence of the National Government and its particular activities throughout the period necessarily limited the range of prescriptive acts New York might possibly have performed and the information any acts performed might convey to New Jersey about New York‘s intentions. Although New Jersey has not argued that the occupation of the filled land exclusively by the United States throughout the prescriptive period precluded any requisite occupation by New York as a matter of law (and we express no opinion on that point, cf. Georgia v. South Carolina, 497 U.S. 376, 389 (1990) (finding prescription where United States Army Corps of Engineers had performed some work on territory in dispute); Arkansas v. Tennessee, 310 U.S. 563, 571-572 (1940) (rejecting argument that prescription is not possible where the United States holds title to land)), much of the standard evidence of sovereign prescription is
In sum, the peculiar facts of this case affected New York‘s capacity to invoke a sovereign‘s claim as well as the significance of such acts it now adduces as prescriptive in character. New York‘s position as sovereign of the original Island
ing at the Island,” post, at 822, JUSTICE STEVENS presumably relies upon the testimony of New York‘s expert witness Harlan Unrau. As evidence that New York provided this assistance, however, Unrau relied upon 10 letters from the New York City Police Department to the INS requesting information about aliens originating in Germany. These documents give no indication that members of the New York City Police Department were themselves present on the Island to question immigrants. Indeed, although the INS‘s 1942 year-end report mentioned that “the Army and Navy intelligence services, the Department of State, the Federal Bureau of Investigation, the Coast Guard, the Customs Service, and the Immigration and Naturalization Service cooperated in a plan whereby all incoming passengers, both aliens and those claiming U. S. citizenship, were carefully investigated,” N. J. Exh. 530, pp. 8-9, the report does not mention that any state agency participated in the interrogation.
1
There is some evidence that New York recorded vital statistics of people on the Island. The record contains New York certificates recording five births that probably occurred on the filled portions of the Island,14 22 New York certificates recording deaths on the Island, all but one of which are from a single 4-month period in 1924, and five15 marriage certificates, four from 1901 and one from 1914.16 For a period of
2
New York presented evidence of New York State and New York City statutes and ordinances that included the Island in voting districts, together with voting registration lists with names of people who indicated that they lived on filled portions of the Island. The limited force of this evidence is, however, manifest. The state statutes make no specific reference to the filled land, and even if they are read as doing so, they are evidence of claims made in Albany or Manhattan, not acts of sovereignty on the Island. Nor does the legislation reflect any awareness of changes in the Island‘s territory over time. The same New York statutes for the establishment of Senate and Assembly districts covering Ellis Island also purport to include another of the so-called Oyster Islands that had been dredged out of existence by 1903, see 1916 N. Y. Laws, ch. 373; 1917 N. Y. Laws, ch. 798; 1943 N. Y. Laws, ch. 359; in fact, the reference to the latter was not deleted from the New York statutes until 1953, see 1953 N. Y. Laws, ch. 893, and the related maps of the First and Second Assembly districts continued to show the missing Oyster Island as late as 1945. The depiction of Ellis Island on these maps remains constant even though throughout the first third of this century the Island continued to change size and shape. N. Y. Exhs. 957-963 (maps of Borough of Manhattan, 1st and 2d Assembly Dists., issued by Bd. of Elections of N. Y. C. (1918, 1926, 1927, 1929, 1930, 1939, 1945)). Since New York made no effort to update its description of voting districts to eliminate the reference to Oyster Island, never specifically indicated an intent to include the filled land in its voting districts, and failed to make any alteration in its representation of the Island on its voting maps, its legislative acts were not overtly prescriptive and furnished no reason for New Jersey to infer that New York intended to include
3
The third category of New York‘s proffered prescription evidence covers personal impressions that the filled portions of the Island belong to New York. We have recognized before that the belief of the inhabitants of disputed territory that they are citizens of one of the competing States is “of no inconsiderable importance.” Handly‘s Lessee v. Anthony, 5 Wheat. 374, 384 (1820); see also Maryland v. West Virginia, 217 U.S. at 41, 44 (noting that people living in the disputed territory gave allegiance to West Virginia); Virginia v. Tennessee, 148 U.S. at 527 (noting that all but a handful of the residents of the disputed territory considered themselves citizens of Tennessee). New York‘s strongest items of this sort of circumstantial evidence are the voting registration lists for 10 of the possible 60 years, on which numerous individuals list their residence as “Ellis Island, New York.” The significance of the declarations is qualified, however, for the reasons we have already given, and the rest of New York‘s evidence about the understanding of individuals is hardly worth mentioning. This includes, for example, documents indicating that the same two men who witnessed the Commissioner of Immigration‘s signature on contracts four different times in 1908 and 1909 listed their residences as “Ellis Island, NY“; that another witness did the same once in 1904, and two others did in 1908. On one petition for naturalization filed in 1911 the applicant listed her residence as “Ellis Island, New York,” as did her witness. Finally, one William Hewitt, who lived in the officers’ quarters on the Island with
4
The final category of relatively noteworthy evidence covers indications that during the relevant period the United States understood the filled portions of the Island to be part of New York. It is not, of course, that the understanding of officials of the United States, even those on the Island, is itself tantamount to prescriptive activity. The United States was in no sense New York‘s proxy. See California v. Nevada, 447 U.S. 125, 131 (1980) (noting that the United States does not have the power to reestablish boundary lines). It may, however, amount to persuasive evidence that a State‘s prescriptive acts have succeeded in their object.20 While the record does indeed contain some such evidence favorable to New York, other indications point the other way.
First, there is some evidence that officials of the United States may have thought the entire Island was in New York. At various times from 1903 to 1925 the Commissioner of Immigration on Ellis Island used New York wages as a benchmark to show the need to raise the wages of federal workers on the Island. And although federal specifications governed construction projects on the Island, federal inspectors are known to have alluded to New York building codes as if they had been bases for relevant comparisons; a federal inspector would occasionally remark that if a particular building were subject to New York regulations, it would have to be condemned, and once, in 1935, when an official in the Public Works Branch of the Procurement Division recommended accepting a contractor‘s request to use a particular kind of bolt, the official noted that his New York counterparts had allowed the bolt to be used.21 References to New York regulations as benchmarks do not, then, necessarily indicate that federal officials actually thought the filled land was part of New York.
After the passage of the Davis-Bacon Act, 46 Stat. 1494, however, comes less equivocal evidence of understanding. As originally enacted, this statute provided that workers on “any public buildings of the United States” be paid at a rate “not less than the prevailing rate of wages for work of a similar nature in the city, town, village, or other civil division of the State in which the public buildings are located,” ibid.,
But the National Government was nothing if not pluralistic in its views on the matter. In 1900, when the Government requested proposals for a kitchen and restaurant building on the Island, its announcement stated that “Ellis Island is not under the jurisdiction of the State or City of New York. The New York City and State Building Laws and
Within a year of that, however, yet another view of the filled land‘s sovereignty began to develop in two other federal agencies, the view that neither State had a jurisdictional claim. Two Members of Congress from New Jersey, Senator
The record does not reveal whether the Compact was ever brought to the notice of the Department of Labor, but if it was it made an impression markedly different from its effect on the Treasury. For in the 1940‘s, the Secretary of Labor moved from its solicitor‘s rejection of both States’ claims to an acceptance of New Jersey‘s, issuing several decisions in the 1947-1949 period on proper wage rates for construction projects on the Island, to which he referred as “Ellis Island, New York Harbor, Hudson County, New Jersey.” In the same period, the Department of Labor expressly ruled that New York building trade wage rates were not applicable to construction on the Island because “Ellis Island [is in] New York Harbor, in Hudson County, New Jersey.” In June 1949, the Secretary declared that once again New York wage rates would apply; the Secretary explained only that “additional data and more current information have been assembled.”
At the end of the day, or the possible prescription period, the circumstantial evidence of official federal views of Island sovereignty shows no consistent understanding, but simply a grab bag of opinions shifting back and forth between, and within, the agencies of the Government.
5
After reviewing all the evidence New York has presented, we find that with the arguable exception of maintenance of
C
New York also asserts the affirmative defense of laches, which “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Kansas v. Colorado, 514 U.S. 673, 687 (1995) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). It presses this defense in spite of our explanation in Illinois v. Kentucky, 500 U.S. at 388, that “[a]lthough the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence.” New York seemingly hopes to benefit from the possibility recognized in Kansas v. Colorado, supra, at 687-688, that a laches defense may be available in some cases founded upon interstate compacts. We have no reason to explore that possibility here, however, because New York has made it plain that what it calls the defense of laches is not at all what it really asserts.
The claim of prejudice that New York raises under the guise of a laches defense includes no prejudice in defending against suit insofar as it is based upon the Compact and the doctrine of avulsion. New York does not, for example,
New York claims prejudice, rather, in presenting its affirmative defense of prescription and acquiescence. To establish that defense, as we have seen, New York must prove that it took action to acquire sovereignty independent of the Compact, and that New Jersey failed to protest. When New York thus asserts prescription as an affirmative defense, it is in the same position it would have occupied if it had itself brought an original action against New Jersey claiming sovereignty by prescription. On each of the essential elements of prescription and acquiescence New York has the burden of persuasion, and therefore, though raising a “defense,” it is in effect a plaintiff. And it is in aid of this plaintiff‘s burden of proof that New York claims to have been prejudiced: it argues that if this action had been brought many years ago there would have been more evidence of sovereign acts by its officials, and better evidence of general understanding of where sovereignty lay, to enable it to carry its burden.
New York may be right, as a matter of fact, though it is hard to say. But even if the State is right, it cannot benefit from the defense of laches. This is so because New York is effectively a plaintiff on the issue of prescription and cannot invoke laches to escape the necessity of proving its affirmative case.
III
New Jersey‘s first and second exceptions go only to the dimensions of the original portion of the Island, the first questioning the Special Master‘s choice of water levels to
A
As the Special Master saw it, under Article Second, which awarded the Island to New York without further geographical specification, that State‘s authority extends to the original Island‘s low-water mark, a conclusion with which we agree, though not for the same reasons that persuaded the Special Master. He relied heavily on the negotiations between New Jersey and New York in 1827, in which New Jersey at one point offered to give New York “the islands called Bedlow‘s Island, Ellis’ Island, Oyster Island and Robbins Reef, to [the] low water mark of the same. . . .” N. J. Exhs. 280-292 (Report of the Commissioners of New York to the New York Legislature, Jan. 26, 1828, p. 3). We rest our own, like conclusion (given the silence of the Compact) on the general rule we have previously recognized, that the low-water mark is the most appropriate boundary between sovereigns. See Vermont v. New Hampshire, 289 U.S. 593, 606 (1933); Handly‘s Lessee v. Anthony, 5 Wheat. 374, 383 (1820). We explained this in Handly‘s Lessee:
“This rule has been established by the common consent of mankind. It is founded on common convenience. Even when a State retains its dominion over a river which constitutes the boundary between itself and another State, it would be extremely inconvenient to extend its dominion over the land on the other side, which was left bare by the receding of the water. . . . Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes the boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark.” Id., at 380-381.
Nor is our assumption unsettled by the fact, emphasized by New Jersey, that Article Third gives New York jurisdiction over “lands covered by the . . . waters [of the rivers and the Harbor] to the low-water mark on the westerly or New Jersey side thereof [subject to certain exceptions].” New Jersey argues that specification of a low-water mark as a jurisdictional boundary on the New Jersey shore suggests that some other, or high-water, line was intended elsewhere, as on Ellis Island. But we think any such inference would be unsound.
The jurisdiction bounded at the low-water mark under Article Third was New York‘s jurisdiction over the waters of the river and harbor. New York was also given jurisdiction over the land submerged by this water. Since jurisdiction over the submerged land followed from jurisdiction over the water, one might question whether the submerged land jurisdiction crept inland at high water. On the assumption that title to fast land generally extended to mean low water, the answer to this question was wholly academic so far as it related to Ellis Island and the other islands, but of potential consequence so far as it concerned the New Jersey shore. If New York‘s jurisdiction over submerged lands moved inland on Ellis Island with rising water, it would simply extend over land already subject to New York‘s jurisdiction under the general rule recognized in Handly‘s Lessee, since New York had jurisdiction over the original Island. But that would not be so on the New Jersey shore. If New Jersey‘s sovereignty extended to mean low water under the general rule, there would be a conflict with New York‘s jurisdiction over submerged lands on the margin covered by high water. The specification that New York‘s submerged land jurisdiction would stop at the low-water mark on the New Jersey shore thus resolved a question that would only arise at that
B
New Jersey‘s second exception takes us to much narrower detail. The State challenges the sufficiency of the evidence for the Special Master‘s conclusion that the pier extending from the Island in 1834 was built on landfill, with the result that the area covered by it was meant to fall within New York‘s authority recognized in Article Second. The Special Master relied on a map of the Island from 1819, which appears to show a filled area around the location of the pier, and although New Jersey is correct that “it is possible that the pier was built on pilings,” New Jersey Exceptions 47, New York‘s expert credibly testified that in the mid-1800‘s the use of pilings to create piers was still uncommon, and that it would have been much easier to add landfill to the shallow waters around the Island. We have to agree with the Special Master that the likely conclusion is that the pier was built on landfill.
C
Finally, New Jersey argues that this Court lacks the authority to adjust the boundary between the States in the manner that the Special Master recommended for reasons of practicality and convenience, and with this we agree. The
We appreciate the difficulties of a boundary line that divides not just an island but some of the buildings on it, but these drawbacks are the price of New Jersey‘s success in litigating under a compact whose fair construction calls for a line so definite.27 See Texas v. New Mexico, supra, at 567, n. 13 (noting that litigation of disputes between States “is obviously a poor alternative to negotiation between the interested States“). A more convenient boundary line must
IV
The exception of the State of New Jersey to Part VII of the Special Master‘s report, which concerns our authority to adjust the original boundary line between the two States, is sustained. The other exceptions of New Jersey and those of the State of New York are overruled. The case will be recommitted to the Special Master for preparation of a proposal for a decree consistent with this opinion.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring.
Many of us have parents or grandparents who landed as immigrants at “Ellis Island, New York.” And when this case was argued, I assumed that history would bear out that Ellis Island was part and parcel of New York. But that is not what the record has revealed. Rather, it contains a set of facts, set forth with care by JUSTICE SOUTER and JUSTICE STEVENS (who do not disagree about the facts), which shows, in my view, that the filled portion of Ellis Island belongs to New Jersey.
I cannot agree with JUSTICE SCALIA that custom, assumption, and late 19th-century history fills in, and explains, an ambiguity in the original Compact between the States, for I do not find sufficient, relevant ambiguity. The word “relevant” is important, for the document, in fact, is highly ambiguous. But what I find the more serious and difficult ambiguity arises in sections upon which New York State does not
Nor can I agree with JUSTICE STEVENS that New Jersey lost through prescription what once rightfully was its own. Too much of the evidence upon which he relies is evidence of events that took place during the time that neither New York nor New Jersey, but the Federal Government, controlled Ellis Island. At that time, Judge Wyzanski expressed the view that:
“Ellis Island and Bedloe‘s Island are no more a part of New York or New Jersey than the Philippine Islands or Hawaii are. They are territories of the United States not falling under the jurisdiction of any one of the forty-eight states.” N. J. Exh. 43.
The Federal Government‘s virtually exclusive authority over the Island means that New Jersey could well have thought about the same. Perhaps more specialized property lawyers would have phrased their own conclusions in less ringing terms and with more numerous qualifications. But, still,
For these reasons, in particular, and others, all spelled out in detail by JUSTICE SOUTER, I must conclude that the filled portion of Ellis Island belongs not to New York, but to New Jersey. I therefore join the Court‘s opinion.
JUSTICE STEVENS, dissenting.
While I agree with the Court‘s analysis of the relevant legal issues, I do not agree with its appraisal of the evidence. Because we are in effect sitting as a trial court, and because the relevant evidence is either documentary or uncontradicted oral testimony, we are able to make our own findings of fact and draw appropriate inferences from those findings. In my judgment a preponderance of that evidence supports a finding that all interested parties shared the belief that the filled portions, as well as the original three acres, of Ellis Island were a part of the State of New York for over 60 years. That finding, in turn, supports the conclusion that New York acquired the power to govern the entire Island by prescription.
During the period between 1892 and 1954 Ellis Island served as the Gateway to America for over 12 million immigrants. Thousands of citizens worked on the Island and hundreds resided there during those six decades. There is no evidence that any of those people ever believed that any
I
As a preface to its factfinding, the Court provides us with two reasons for discounting the probative force of much of New York‘s evidence: the fact that New Jersey concedes that the original Island is in New York and the fact that the Island was occupied by the United States during the relevant period. Ante, at 790-794. Neither of those facts undermines the force of the uncontradicted evidence. I believe that a more appropriate preface to our factfinding function is a comment on the probable expectations of the three sovereigns who participated in the decision to enlarge the Island for use as an immigration station.
In 1890, when that decision was made, the 1834 Compact establishing the boundary between the two States had not yet been construed. Article Second of the Compact made it clear that Ellis Island was in New York, but Article Third identified separate interests in the area surrounding the Island. New Jersey was accorded “the exclusive right of property in and to the land under water” but New York was
It is thus not surprising that during the entire period when the Island was enlarged, and when buildings were constructed on filled land, there appears to have been no discussion of the possibility that the Island might be located in two different States. Indeed, even in 1955 and for several years thereafter when representatives of New Jersey vociferously asserted jurisdiction over Ellis Island, they claimed not just the filled portions but the entire Island. It was not until 1963 that New Jersey first advanced the claim that the state line split the Island (and, consequently, three buildings on the Island). Thus, the preponderance of the evidence supports a finding that during the relevant period between 1890 and 1954 both New Jersey and New York believed that the entire Island was located in one State.
II
Census data collected by both New York and the Federal Government establish that nonimmigrants resided on Ellis Island throughout the relevant period. This population increased from 93 in 1915, to 124 in 1920, and 182 in 1925.2
The uncontradicted testimony indicates that these people lived only on the filled portion of the Island. They were employed as cooks, maids, nurses, and hospital attendants. Both the New York and federal censuses counted these people as residents of New York.
The evidence also indicates that these residents voted in New York elections. According to maps prepared by the New York City Board of Elections in 1918, 1926, 1927, 1930, and 1945-1946, Ellis Island was part of a New York State Assembly District. Moreover, both the 1894 and the 1938 New York State Constitutions place Ellis Island in a New York State Senate District. Furthermore, since 1911 New York law has explicitly included Ellis Island in a federal congressional district. Finally, records of the New York City Board of Elections for 1918, 1919, 1925,3 1930, and 1953 indicate that Ellis Island residents actually voted during those years. Indeed, an official list of enrolled voters for “1944-1945” identifies the party affiliation of over 50 residents of Ellis Island. It is reasonable to infer that residents of Ellis Island regularly voted in elections for New York offices and for candidates to represent New York in the United States Senate and House of Representatives. Given the public character of that activity it is also reasonable to infer that New Jersey was fully aware of that voting.
The Court fails to give proper weight to the fact that the entire population of the Island was counted as a part of New York in the federal census. The accuracy of the census is a matter of great importance to every State because it determines the size of a State‘s congressional delegation, as well as providing “the basis for the allocation of various benefits and burdens among the States under a variety of federal
III
There is uncontradicted testimony that between 1892 and 1954 there were hundreds of births and thousands of deaths on the Island. Since the hospital was located on the filled portions of the Island, virtually all of those births and deaths must have occurred in what is now claimed to be part of New Jersey. Presumably each of those births and each of those deaths was recorded in either a birth certificate or a death certificate. There is no evidence that any such certificate was issued by New Jersey. Given the fact that all of the relevant birth certificates and all of the relevant death certificates that have been found were issued by New York authorities, it is reasonable to infer that New York actually issued hundreds of birth certificates and thousands of death certificates to record events that occurred on Ellis Island. A preponderance of the evidence therefore would support a finding that throughout the relevant period New York per-
IV
There is evidence that hundreds of marriages were performed on Ellis Island from 1892 to 1907. The exact number is uncertain, but it is undisputed that they were solemnized under New York law.5 Moreover, after a 1907 amendment to New York‘s domestic relations law, Ellis Island residents obtained their marriage licenses at City Hall in New York City. Fiorello La Guardia, who served as an interpreter on the Island between 1907 and 1910, escorted couples to Manhattan so that they could get married. Presumably similar trips were made by engaged couples throughout the balance of the relevant period.6 There is no evidence of any Ellis Island resident being married under New Jersey law.
The evidence indicates that the millions of immigrants entering the country, as well as the hundreds of residents of the Island, believed that Ellis Island was located in New York. For many of the immigrants, their journey to America began with a steamship ticket with the destination listed as “New York.” Upon arrival, the “certificate of arrival” for each newcomer was marked “Ellis Island, New York“; indeed, hundreds of thousands of such certificates of arrival are on file at the National Archives. Moreover, upon arrival, a federal official pinned a Landing Card on each newcomer; according to a representative card, the Landing Card stated, in eight different languages: “When landing at New York this card is to be pinned to the coat or dress of the passenger in a prominent position.”7 Given this evidence,
Similarly, residents of Ellis Island—all of whom lived on the filled portions of the Island—believed that they lived in New York. Documents executed by residents of the Island during the relevant period consistently referred to their address either as “Ellis Island, N. Y.,” or as “Ellis Island, New York.” These references appear not only in voting records, but in other miscellaneous documents as well. Given the fact that the United States Postal Service placed the Island in a New York postal zone, presumably the residents regularly received mail addressed to “Ellis Island, N. Y.” There is no evidence that any of those residents prepared or received any mail or other documents describing their residence as in New Jersey.
Thus, the available evidence supports the proposition that the new immigrants, as well as everyone who lived on the Island during that period, thought that all of Ellis Island was a part of New York. Significantly, as far as I am aware, there is not a single indication in the voluminous record8 that any immigrant or any resident thought that Ellis Island, in whole or in part, was a part of New Jersey.
VI
On the few occasions identified in the record when it was necessary to obtain state or municipal assistance for law enforcement or fire protection on Ellis Island during the relevant period, those services were performed by New York employees. Thus, in the 1897 fire, “New York rushed twenty policemen to keep order among the panic-stricken immigrants.”9 In 1916, New York City firemen extinguished a fire in the seawall cribbing. In 1934, New York police investigated a fatality that resulted from a construc-
VII
When courts considered the question, they consistently assumed or decided that Ellis Island was a part of New York. Thus, in 1915 one New York state court assumed that it had jurisdiction over an action for assault allegedly committed on the Island.11 In 1931, the United States Court of Appeals for the Third Circuit, which includes New Jersey, held that the District Court for the District of New Jersey did not have jurisdiction over a habeas corpus petition filed by an alien detained on the Island.12 The federal judges sitting in
The Court discounts the probative force of most of New York‘s evidence by repeatedly reminding us that New York has the burden of proving prescription, and in many instances has failed to prove that New Jersey had actual notice of what happened on the Island, or, more narrowly, that the relevant events occurred on the filled portion rather than the original three acres. The discount would be appropriate if we were reviewing the history of a remote atoll in the far Pacific. In fact, Ellis Island was an enclave entirely within the geographic boundaries of New Jersey; a ferry connected it with Jersey City, which is less than a quarter of a mile away. Particularly during the first few decades of the prescriptive period, it teemed with activity that was open and notorious. Moreover, given the fact that 90% of the Island was filled land, it is surely reasonable to infer that whenever the specific location of a prescriptive event was in doubt, it is more likely than not that it occurred in what is now claimed to have been New Jersey.
Not only should we presume notice to New Jersey of what was occurring within the outer boundaries of the State; we must also presume that New Jersey was aware of the official acts of both New York and the United States that were predicated on the understanding that all of Ellis Island was in New York. Judicial districts, legislative districts, postal districts, and census districts all included the entire Island within New York.
IX
The only significant evidence14 offered by New Jersey to support the proposition that it did not accept New York‘s
Representative Norton‘s correspondence fails to establish nonacquiescence for several reasons. First, it demonstrates that people in New Jersey were actually aware of what was happening on Ellis Island. Second, when the Treasury Department ultimately rejected Representative Norton‘s sub-
JUSTICE BREYER‘s concurrence merits a separate comment. He places great reliance on Charles Wyzanski‘s statement that Ellis Island was not a part of either New Jersey or New York during the prescriptive period, but rather was a territory of the United States not falling within the jurisdiction of any of the then 48 States. See ante, at 813. Wyzanski, who was then the Solicitor of Labor, made this statement during the Federal Government‘s consideration of Representative Norton‘s request. As already noted, after full consideration, the Government rejected her request.
It is true that Wyzanski was an exceptionally able lawyer, but it is perfectly clear that in this instance he was simply wrong. Like numerous other federal enclaves within the United States, Ellis Island was unquestionably subject to the jurisdiction of the State or States in which it was located. Nevertheless, even though Wyzanski was clearly wrong, I would agree with JUSTICE BREYER that Wyzanski‘s opinion would be relevant if it stated a view that was expressed by others during the prescriptive period. In fact, there is not a shred of evidence that anyone else shared that view, either before or after Wyzanski made the statement. The prevailing view during the relevant period was that shared by the legislators who drew the boundaries of the congressional districts, the census takers who treated Ellis Island residents as citizens of New York, and the New York officials who supervised their voting in New York and recorded the births, marriages, and deaths that occurred on the Island. Indeed,
XI
In my opinion the conclusion that New York acquired jurisdiction over the entire Island by prescription is supported not merely by a preponderance, but by clear, convincing, and uncontradicted evidence.18 With all respect, I am persuaded that the Court‘s contrary conclusion rests on a hypertechnical focus on detail that overlooks the significance of the record as a whole. What I believe was apparent to virtually everyone in New York and New Jersey, as well as to the millions of immigrants who entered our melting pot through the Ellis Island Gateway during the early part of this century, is somehow obscured in a voluminous trial record. The implausibility of the Court‘s conclusion is underscored by the strange boundary line that it has decreed.
Instead of the entire Island constituting an enclave within the borders of New Jersey, now New York‘s share of the Island is an enclave within New Jersey‘s share of the Island. The new state line intersects three buildings—the Main Building, the Baggage and Dormitory Building, and the Boathouse Building. Thin strips of New Jersey‘s sovereign territory separate New York from the ferry slip where boats operated by the City of New York have been delivering millions of visitors annually. By ending New York‘s sovereignty over a large portion of the ferry slip in front of the Main Building, well short of the slip‘s seawall, the decree denies New York access to, and control over, the area of land most intimately and functionally connected to the operation
In my opinion it is not only the bizarre boundary that is unfair to New York. It is the failure to draw the common-sense inference that neither State could have contemplated such a bizarre division of the Island during the prescriptive period that lasted for over 60 years. During that entire period both States most certainly treated Ellis Island as part of a single State. Unquestionably, that State was New York.
Accordingly, I respectfully dissent.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I agree with JUSTICE STEVENS that the available evidence supports the conclusion that “all interested parties shared the belief that the filled portions, as well as the original three acres, of Ellis Island were a part of the State of New York for over 60 years,” ante, at 814 (dissenting opinion). And I agree that New Jersey‘s claim to the filled portions should be rejected for that reason.
I would not, however, rely upon prescription. Since that doctrine permits a claimant to oust the original, undoubted owner, it justifiably demands a very high burden of proof. Specifically, and in the context of the present case, it requires, as the Court points out, not merely acts of possession and jurisdiction on the part of New York, but also, on the part of New Jersey, “acquiescence in those acts of possession and jurisdiction,” which in turn requires “knowledge that New York acted upon a claim to the added land, or evidence of such open, notorious, visible, and uninterrupted adverse acts that New Jersey‘s knowledge and acquiescence may be presumed.” Ante, at 787.
I see no reason to climb that mountain in the present case. New Jersey is not the original, undoubted owner whose title
We have applied that principle before to treaty cases (the Compact here is of course a treaty). See, e. g., Air France v. Saks, 470 U.S. 392, 396 (1985) (“[T]o ascertain [the] meaning [of treaties] we may look beyond the written words to . . . the practical construction adopted by the parties“) (quoting Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943)). We have also applied similar reasoning to the precise area of interstate boundary disputes. See Vermont v. New Hampshire, 289 U.S. 593, 619 (1933) (“[T]he practical construction of the boundary by the acts of the two states and of their inhabitants tends to support our interpretation of the Order-in-Council of 1764“). I would do so again here.
For a lengthy period of time all the parties to the Compact—New York, New Jersey, and the United States—behaved as though all of Ellis Island belonged to New York. New York provided to the residents of the Island, including the filled portions, privileges and services a sovereign normally provides—the right to vote, civil marriages, birth and death certificates, police and fire protection. As far as appears, New Jersey provided none of them; and whether or not New Jersey knew that New York was behaving like a sovereign, it assuredly knew that it was not. And the United States, for its part, treated the Island as part of New York for its governmental purposes, including the constitutionally required decennial census, the assignment of postal
Notes
While there is some dispute over where these marriages occurred on the Island, it is fair to conclude, as the Court does, that these marriages were typically performed in the Great Hall of the Main Building, which was located on the original Island. Thus, they were performed in New York. The Court discounts the significance of this evidence because it does not necessarily constitute prescriptive activity on the filled portion of the Island. But if we assume, as the record plainly indicates, that everyone then believed that the entire Island was located in the same State, these marriages provide further confirmation of the proposition that everyone on the Island believed that that State was New York.
“Very often brides came over to marry here, and of course we had to act as witnesses. I have no count, but I‘m sure I must have helped at hundreds and hundreds of weddings of all nationalities and all types. The weddings were numberless, until they dropped the policy of marrying them at the Island and brought them to City Hall in New York.” E. Corsi, In the Shadow of Liberty 87 (1969) (hereinafter Corsi).
“The island is property of the United States, ceded to the United States by the State of New York in 1808 and since 1891 used by the United States as an Immigration Station for the Port of New York. When it was property of New York it was within one or another of the counties of that state or within the waters thereof. With respect to federal jurisdiction over such counties and their waters, the United States by statute (
There is also evidence that two criminal complaints were filed in New York City Municipal Court involving Ellis Island residents, but, as New York admitted, “it is not clear from those complaints whether the criminal acts occurred on Ellis Island.” New York‘s Response to New Jersey Request for Admission 35 (Request No. 82).
In stating that “[i]n 1942, the New York City Police Department formed a special squad to assist federal officials in questioning immigrants arriv-
In a more recent case, the Court of Appeals for the Second Circuit reached the same conclusion as the Third:“Ellis Island remains a part of New York by acknowledgment of the government and without objection (except in this case) by New Jersey. It has been a component of New York Congressional, State Senate and Assembly districts for more than one hundred fifty years. As part of New York County, it lies within the territorial jurisdiction of the United States District Court for the Southern District of New York,
“At the present time on Ellis Island there are under the course of erection several buildings and from maps obtained by us of the Department of Conservation and Development of the State of New Jersey, the latest edition of which was printed and revised in 1932 [sic] show specifically that this Island is entirely within the boundary lines of the State of New Jersey. This being the case we feel that Unions in New Jersey should have jurisdiction over this work and have protested to our International Union for the right to cover this operation.” N. J. Exh. 18 (letter of Thomas F. Moore, Secretary, Bricklayers, Masons & Plasterers International Union, Local No. 10, New Jersey, to Honorable Mary T. Norton).
Similarly, on August 18, 1934, the union wrote to Representative Norton:
“Since the middle part of June this union has sought jurisdiction of those Islands lying in New York Bay, known as Ellis and Bedloes Islands, from the Executive Board of our International Union. It is our contention that these Islands are part and parcel of the State of New Jersey. We have also obtained official maps of the State of New Jersey which shows [sic] that these Islands lie within the boundary lines of the State of New Jersey.” N. J. Exh. 28 (letter of Thomas F. Moore, Secretary, Bricklayers, Masons & Plasterers International Union, Local No. 10, New Jersey, to Honorable Mary T. Norton).
First, maps from the Harbor Line Board from 1890 to 1911 labeled Ellis Island as being part of New Jersey. Yet since only the original Island existed in 1890, the first mapmaker obviously made a mistake; given the fact that the state designation had no practical consequence, it is reasonable to conclude that the mistake was simply carried forward in subsequent maps. Second, the Federal Government purchased the underwater land surrounding the Island from New Jersey in 1904; but because the 1834 Compact gave New Jersey property rights to such land, it is fair to assume that the Federal Government merely saw itself as purchasing this property from its rightful owner. Third, Edward Corsi, the Commissioner of Immigration on Ellis Island, applied to New Jersey‘s Board of Commerce and Navigation for permission to construct a new seawall in 1933. One of the blanks on the permit application asked “[w]here work is contemplated“; Corsi entered “New York.” N. J. Exh. 10. So while it is unclear why Corsi applied to New Jersey for the permit, it is clear from the face of the document that Corsi believed the work was being performed in New York. Fourth, after Representative Norton argued that some of the jobs on Ellis Island should be given to New Jersey residents, federal officials initially proposed a compromise solution, dividing the jobs between New Jersey and New York; as noted, however, the officials eventually concluded that all of Ellis Island belonged to New York. Finally, from 1947 to 1949, the Department of Labor used New Jersey wage rates to determine wages for construction projects on the Island; in 1949, however, the Secretary reversed his decision—because “additional data and more current information ha[d] been assembled.” N. J. Exh. 90.
These five incidents do not undermine New York‘s claim of prescription. Moreover, these isolated incidents are dwarfed by the Federal Government‘s repeated statements and actions that treated all of Ellis Island as a part of New York. The Immigration Service, the federal agency most intimately involved with the Island, clearly believed that all of Ellis Island
JUSTICE STEVENS contends that once New Jersey transferred title to the submerged lands to the United States “the parties may reasonably have believed that the State thereafter possessed neither ownership nor jurisdiction over that area, particularly since the Compact had provided that New York was entitled to exercise jurisdiction over the surrounding surface.” Post, at 816. On the contrary, the reasonableness of any such belief is belied by the fact that New York, to this day, has never claimed that it had any such understanding, presumably for two very good reasons. First, in transferring “all the right, title, claim and interest of every kind” in certain submerged lands to the United States in 1904, New Jersey‘s conveyance sounded much like New York‘s conveyance to the National Government in 1808 of all “right, title, and interest” in the original Island. (While the latter transfer was expressly “for the defense and safety” of the city and port, these words were not treated as limitations on the rights of the United States even when it converted the Island from a military installation to an immigration station.) If, then, New York had believed that New Jersey had no interest left to assert, it would have had to say the same for itself in relation to the original Island. Indeed, New York would have been in an arguably weaker position: in 1800 it had ceded “jurisdiction” to the United States (saving only its right to serve process), the territory subject to its conveyance was within the boundary of New Jersey, and New York had no general territorial right in the area except police jurisdiction over the waters. The arguably comprehensive extent of the New York conveyances is, moreover, the reason that JUSTICE STEVENS is mistaken to label the 1890-1911 federal Harbor Line Board maps as obviously wrong. See post, at 826-827, n. 17.
Second, if the United States, and not New Jersey, had sovereign authority over the filled land as a result of the 1904 transfer, New York‘s prescriptive claim to that territory would fail as a matter of law; the United States is immune to prescription by a domestic entity. Texas v. Louisiana, 410 U.S. 702, 714 (1973); United States v. California, 332 U.S. 19, 39-40 (1947).
“Therefore we hold that the judge of the District Court for the District of New Jersey had no power to issue the writ of habeas corpus prayed for in this case, to be executed outside of the territorial jurisdiction of his court.” United States ex rel. Belardi v. Day, 50 F. 2d 816, 817 (CA3 1931).
Jersey. However, long acceptance of the status quo counts for a great deal in matters of territorial disputes between states.” Collins v. Promark Products, Inc., 956 F. 2d 383, 387-388 (1992). was part of New York, as is evidenced by dozens and dozens of documents in the record. Similarly, the Department of Public Health, the Navy Department, the Department of Treasury, and the Justice Department all repeatedly treated Ellis Island as a part of New York. (Although my analysis does not turn on this point, it is worth noting that many of these documents specifically refer to the filled portions of the Island.) In addition, as far as I am aware, every Act of Congress that mentioned the location of Ellis Island gave its location as New York. *JUSTICE BREYER asserts that there is no “sufficient, relevant ambiguity” because New York has “basically rested its case upon Article First and Article Second” of the Compact, which “are silent about what would happen to an Ellis Island ‘avulsion,‘” leading JUSTICE BREYER to the conclusion that the normal rules of avulsion apply. Ante, at 812, 813 (concurring opinion). It is true that the State of New York did not claim title through Article Third, but it relied heavily upon Article Third in giving meaning to Articles First and Second—as we must do as well, since the Compact was meant to form an integrated whole. JUSTICE BREYER contends that Articles First and Second “specify that Ellis Island is in New Jersey waters, for the [Article First] border between the States lies far to the east.” Ante, at 813. But Article First establishes a boundary down the middle of the Hudson only “except as hereinafter otherwise particularly mentioned.” The exceptions include (in Article Second) New York‘s jurisdiction over Ellis Island, and its “exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that state.” New York‘s claim that the normal rules of avulsion were not meant to apply to this exception rests largely upon its contention that one of the major purposes of the Compact was to “guarante[e] New York‘s control over commerce and navigation in New York Harbor,” which was achieved (1) by Article Second‘s giving New York “exclusive jurisdiction” over all the islands in the bay, and (2) by Article Third‘s giving New York “exclusive jurisdiction” (the same language) over all the waters and submerged lands of the bay. Exceptions of State of New York to Report of Special Master 16. This major purpose, according to New York, would be defeated if landfill additions to the islands on the New Jersey side of the bay became little enclaves of New Jersey. It is therefore not true that New York did not rest its argument upon Article Third—and not true (when one reads the Compact as a whole) that Article Second unambiguously leaves the question of landfill on Ellis Island to the background law of avulsion.I may add that even if Article Third were totally unconnected to Articles First and Second, I do not think in a matter of this consequence we should hear only the arguments of the State of New York, and disregard those of New York City, which has a vital interest in this matter and participated actively as an amicus, in submitting evidence, examining wit-
nesses, and presenting argument. The city did rely upon Article Third as an independent basis for New York‘s jurisdiction. It seems to me that JUSTICE BREYER and the Court bend over backward to pronounce clarity in this document where there is none.