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NEW JERSEY v. NEW YORK - 523 U.S. 767
OCTOBER TERM, 1997
NEW JERSEY v. NEW YORK
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER No. 120, Orig. Argued January 12, 1998-Decided May 26,1998
An 1834 compact (hereinafter Compact) between New York and New Jersey, approved by Congress pursuant to the Compact Clause, set the boundary line between the States as the middle of the Hudson River, Article First; provided that Ellis Island, then three acres, was part of New York, despite its location on the New Jersey side of the river, Article Second; and provided that New York had exclusive jurisdiction of submerged lands and waters between the two States to the low-water mark on the New Jersey shore, subject to certain exceptions, including New Jersey's right to submerged lands on its side of the boundary, Article Third. The States agree that Article Second gave New York sovereign authority over the Island, and this Court has determined, inter alia, that New Jersey has retained ultimate sovereign rights over submerged lands on its side, Central R. Co. of N. J. v. Jersey City, 209 U. S. 473, 478-479. Mter 1891, when the United States decided to use the Island to receive immigrants, the National Government began filling around the Island's shoreline and over the next 42 years added some 24.5 acres to the original Island. In 1954, immigration was diverted from the Island. Since then, the Island has been developed as a national historic site, but New York and New Jersey have asserted rival claims of sovereign authority over its filled land. In 1993, New Jersey invoked this Court's original jurisdiction to try the dispute. After a trial, the Special Master concluded that Article First marks the line of sovereignty between the two States; that although Article Second accords New York some sovereign jurisdiction over the Island as it existed in 1834, the Compact does not address the issue of sovereign authority over the Island's filled portions; and that the filled portions fall under the sovereign authority of New Jersey under the common-law doctrine of avulsion. He rejected New York's affirmative defense of having obtained sovereign authority over the filled portions by prescription and acquiescence and its defense of laches. He pegged the Island's exact dimensions 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 should be treated as part of the original Island. Finally, he recommended, for reasons of practicality, convenience, and fairness, that this Court adjust the Island boundary line between the States, placing the main immigration building and the land
immediately surrounding it within New York. Both States have filed exceptions.
Held: New Jersey has sovereign authority over the filled land added to the original Island. New Jersey's exception to that portion of the Special Master's report concerning the Court's authority to adjust the original boundary line between the two States is sustained. The other exceptions of New Jersey and New York are overruled. Pp.780-812.
(a) Article Second did not give New York jurisdiction over the Island's filled land. The absence of any description of the Island in metes and bounds merely shows that in 1834 everybody knew what the Island was. The Compact's failure to address the consequences of landfilling does not support New York's argument that such filling in New York Harbor was so common a practice in 1834 as to render it unnecessary to mention it in Article Second. Rather, under that era's common law, such filling was "avulsion," which has no effect on boundary, Nebraska v. Iowa, 143 U. S. 359, 361. This rule fills the Compact's silence and leads to the conclusion that the lands surrounding the original Island remained New Jersey's sovereign property when the United States added landfill to them. Neither intuition nor history supports New York's additional argument that the parties would hardly have wanted to divide the Island between the States because any such division would frustrate the Compact's purpose of giving New York control over navigation and commerce in the harbor. Pp. 780-785.
(b) New York has not obtained sovereignty over the filled land through its exercise of prescriptive acts and New Jersey's acquiescence in that exercise. As this is an affirmative defense, New York has a plaintiff's burden of showing by a preponderance of the evidence, Illinois v. Kentucky, 500 U. S. 380, 384, that it exercised dominion over the made land with New Jersey's consent from 1890, when the United States began to add landfill to the original Island, to 1954, when New Jersey vigorously asserted its sovereignty claim. This task is made difficult by two facts: that New Jersey must be supposed to know that, when New York referred to the Island in its official dealings, it meant something other than the original, concededly New York territory; and that the United States's occupation of the land affected New York's opportunity to act in support of its claim-e. g., by establishing towns, roads, or public buildings-as well as the degree of attention that New Jersey may reasonably have paid to whatever acts New York claims to have performed in asserting its jurisdiction. New York's evidence-the recording of vital statistics of people on the Island; the inclusion of the Island in New York voting districts, together with voting registration lists with names of people living on filled portions; personal impressions
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