OCTOBER TERM, 1997
Syllabus
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. After 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
768
Syllabus
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
769
that the filled portions belong to New York; and the United
States's understanding of the Island's sovereignty-is too slight to
support any finding of prescription. New York's official acts
occurred off the Island and were either equivocal in their
territorial references or ill calculated to give notice to New
Jersey; and they did not leave officials of the Island's actual
occupants, the United States, with a settled or consistent
understanding that the filled land might be subject to New York's
sovereignty. Pp. 785-806.
(c) New Jersey is not chargeable with laches through its delay
in bringing this action. Even if New York is correct that there
would have been more and better evidence to support its affirmative
defense of prescription and acquiescence had New Jersey brought its
suit years earlier, it cannot use the defense of laches to relieve
it of the plaintiff's burden of proof on its affirmative defense.
Pp.806-807.
(d) New Jersey is sovereign over the filled portions of the
Island to the mean low-water line, not, as it argues, the mean
high-water line. The Court assumes from the Compact's silence that
the parties were well aware of the general rule, recognized by this
Court, that the lowwater mark is the most appropriate boundary
between sovereigns, see,
e. g.,
Handly's Lessee v.
Anthony, 5 Wheat. 374, 383, and would have explicitly
provided for a high-water mark boundary if that is what they
intended. It would be unsound to infer from Article Third's
specification of a low-water mark as a jurisdictional boundary on
the New Jersey shore that the high-water line was intended
elsewhere. Pp. 807-810.
(e) This Court agrees with the Special Master's conclusion that
the land covered by the pier in 1834 falls within New York's
authority. An 1819 map of the Island, on which the Special Master
relied, appears to show a filled area around the pier's location,
and New York's expert credibly testified that the use of pilings to
create piers was still uncommon by the mid-1800's and that it would
have been much easier to add landfill to the shallow waters around
the Island than build piers. P.810.
(f) This Court lacks the authority to adjust the original
boundary line between the two States to address considerations of
practicality and convenience. Congressional approval "transforms an
interstate compact within [the Compact] Clause into a law of the
United States,"
Cuyler v.
Adams, 449 U. S. 433, 438.
Unless the compact is unconstitutional, no court may order relief
inconsistent with its express terms.
Texas v.
New
Mexico, 462 U. S.
554, 564. The difficulties created by a boundary line that
divides not just an island but some of its buildings are the price
of New Jersey's success in litigating under a compact whose fair
construction calls for a line so definite. Pp. 810-812.
770
Exceptions overruled in part and sustained in part, and case
recommitted to Special Master.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a concurring opinion, in which GINSBURG,
J., joined,
post, p. 812. STEVENS, J., filed a dissenting
opinion,
post, p. 814. SCALIA, J., filed a dissenting
opinion, in which THOMAS, J., joined,
post, p. 829.
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
*Briefs of
amici curiae were filed for the City of New
York by
Paul A.
Crotty, Leonard J.
Koerner, Stanley Buchsbaum, and
Kristin M. Helmers; for the National Trust for Historic
Preservation et al. by
Elizabeth S.
Merritt, Laura S.
Nelson, and
Edward N. Costikyan; for the New-York
Historical Society et al. by
Dennis C.
O'Donnell; and
for the New York Landmarks Conservancy et al. by
John J.
Kerr, Jr.
771
42 years added some 24.5 acres to the area of the original
Island. The issue in this case is whether New York or New Jersey
has sovereign authority over this filled land. We find that New
Jersey does.
I
In April 1993, New Jersey invoked this Court's original
jurisdiction to try a dispute over its territorial jurisdiction,
see U. S. Const., Art. III, § 2, cl. 2, by seeking leave to file a
bill of complaint against New York. We granted New Jersey's
petition, 511 U. S. 1080 (1994), and appointed Paul Verkuil as
Special Master, 513 U. S. 924 (1994). After denying the parties'
cross-motions for summary judgment, he conducted a trial from July
10 to August 15, 1996, and submitted final and supplemental reports
to us on June 16, 1997, 520 U. S. 1273, which were then subjected
to the exceptions resolved here.
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 N ew York and N ew 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
772
interstate boundary disputes, now extending into the fourth
century since the conveyance of New Jersey received its seal. After
the Revolutionary War, New York and New Jersey began their long
disagreement about the common boundary on the lower Hudson and New
York Harbor, with New York arguing that the grant to the N ew
Jersey proprietors set the line at New Jersey's shore and so
preserved New York's sovereignty over the entire river, and New
Jersey contending that as a coequal State emerging after the
Revolution it was entitled to a sovereign boundary in the middle of
the river. Between the two competing lines, of course, lay the
Oyster Islands, one of which, in 1785, came into the private
ownership of the eponymous Samuel Ellis, whose heirs would be its
last private owners. In 1800, the State of New York ceded
"jurisdiction" over the Island to the United States, reserving only
the right to serve judicial process there. Act of Feb. 15, 1800,
ch. 6 (1797-1800 N. Y. Laws, p. 454). In 1808, after obtaining
property title to the Island as well, the State of New York granted
all of its "right, title and interest" in it to the United States,
"for the purpose of providing for the defense and safety of the
city and port of New-York." Act of Mar. 18, 1808, ch. 51 (1808 N.
Y. Laws, p. 273); Act of Mar. 20, 1807, ch. 51 (1807 N. Y. Laws, p.
67); Deed to Ellis Island, by State of New York to the United
States, June 30, 1808. Before the War of 1812 began, the United
States Army had taken over the Island, which it improved with the
construction of barracks and a magazine, and fortified with a
battery of 20 guns.
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-
773
diction and sovereignty" west of the midpoint of the waters of
the Hudson River and New York Bay. N. J. Exh. 293 (Complaint filed
in
New Jersey v.
New York, p. 22 (1829)). New Jersey
made it clear in its papers, however, that the dispute did not
concern the islands in the waters between the two States, by
conceding in its Bill in Equity that during the colonial period New
York had taken possession of the islands "in the dividing waters
between the two States," and "that the possession thus acquired by
New York, ha[d] been since that time ... acquiesced in" by New
Jersey.
Id., at 22-23.
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 United States Constitution, Art. I, § 10, cl. 3. Congressional
consent came with the Act of June 28, 1834, ch. 126, 4 Stat.
708.
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 N ew 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's [1] 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 watermark on the
westerly or New Jersey side thereof." This
1 The name of this island, which is now commonly referred to as
"Liberty Island," was sometimes spelled "Bedloe's."
774
jurisdiction is, however, "subject to [certain] rights of
property and of jurisdiction of the state of New Jersey." That
State, for example, "shall have the exclusive right of property in
and to the land under water" on its side of the boundary line, as
well as "the exclusive jurisdiction of and over the wharves, docks,
and improvements, made and to be made on the shore of the said
state." The terms of the congressional consent to the Compact close
with the provision that "nothing therein contained shall be
construed to impair or in any manner affect, any right of
jurisdiction of the United States in and over the islands or waters
which form the subject of the said agreement."
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 1."
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,
775
"that New York shall retain its 'present' jurisdiction over
them, ... would seem on its face simply to be intended to preserve
the
status quo ante, whatever that may be."
Ibid. In
the current litigation, New York and New Jersey agree that the
effect of Article Second was to recognize that New York had
obtained sovereign authority over all of the islands in the waters
between the two States, including Ellis Island, and that reference
to New York's retention of "present" jurisdiction over Ellis Island
was a recognition of New York's cession of jurisdiction over the
Island to the United States in 1800, save for its right to serve
process there.
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 (\T. 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.
776
After the original wood and stucco depot burned in 1897, the
United States expanded the land for even larger quarters. Although
the new depot, which opened in 1900, sat on approximately the same
spot on the original Island as the prior main immigration building,
it was joined by a hospital placed on a separate island created by
landfill in 1899. The National Government often referred to the
latter as Island No.2, which covered about three acres on the
southwestern side of a ferry slip. A covered gangway built on piles
connected the two islands, which were soon to be joined by one
more, though not before the occurrence of another step in the
boundary dispute.
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-
777
nal Island. In the end, the United States enlarged Ellis Island
by roughly 24.5 acres, for a total area some nine times the
original.
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
778
sell the property and instead develop it as a national historic
site, one advantage of such a course being the supposition that
"any opening of hostilities between New York and New Jersey" would
be obviated. N. J. Exh. 161 (N. Y. Times, Oct. 22, 1964, p. 37,
col. 4). But again the optimism was premature, for although the
National Park Service was given legal title to the Island and to
this day alone exercises jurisdiction over it, and although
restoration of the Island began in 1976, New York and New Jersey
have continued to assert rival claims of sovereign authority over
the filled land of the Island for the purposes of taxation, zoning,
environmental protection, elections, education, residency,
insurance, building codes, historic preservation, labor and public
welfare laws, and civil and criminal law generally. In 1986,
efforts of the two States to resolve the tax issue came to naught
when New York failed to enact a proposed interstate agreement to
deposit tax revenues from the Island into a fund for the homeless.
Seven years later, New Jersey was prompted to bring the instant
action after the United States Court of Appeals for the Second
Circuit held in
Collins v.
Promark Prods., Inc.,
956 F.2d
383 (1992), that New York tort law governed the filled portions
of the Island. We are now called upon to determine which State has
sovereign authority over the filled portion of the Island.
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.
779
The Special Master first concluded that Article First of the
Compact, which establishes "[t]he boundary line between the two
states of New York and New Jersey" at the midpoint of the Hudson
River and New York Harbor, marks the line of sovereignty between
the two States. N ext, he concluded that although Article Second
accords New York some sovereign jurisdiction over the Island as it
existed in 1834,2 the Compact does not address the issue of
sovereign authority over the filled portions of the Island. The
Special Master concluded that the filled portions of the Island are
subject to the sovereign authority of New Jersey under the
commonlaw doctrine of avulsion, and he rejected New York's
affirmatively defensive claim to have obtained sovereign authority
over the filled portions of the Island by prescription and
acquiescence. He also rejected New York's defense that laches
barred New Jersey's complaint, finding the doctrine inapposite to
interstate boundary actions.
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
2 The Special Master did not determine the scope of such
jurisdiction and in particular did not determine the present effect
of New York's cession of "jurisdiction" to the United States in
1800. Because New Jersey's complaint pleaded only its sovereignty
over the filled land, because this is not an action between the
United States and the State of New York, and because the United
States is only an
amicus curiae in this proceeding, we have
no occasion to declare the extent of New York's sovereign
jurisdiction over the original Island. As the United States noted
in its
amicus brief, "the extent to which the federal
government exercises legislative jurisdiction over Ellis Island
under the Enclave Clause" of the United States Constitution, Art.
I, §8, cl. 17, "is not at issue in this case." Brief for United
States as
Amicus Curiae 4, n. 1.
780
fairness," that we adjust the Island boundary line between the
two States so as to place all of the main immigration building and
the land immediately surrounding it within New York. Final Report
of Special Master 3.
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."
781
Neither party takes issue with our holding in
Central R.
Co. that the "boundary line" between the States established in
Article First is the line of sovereignty and that Ellis Island is
on New Jersey's side of this line.3 The States also agree that
Article Second carves out an exception to the boundary provision as
to all of the islands existing at the time of the Compact,
including Ellis Island. They agree that the recognition in this
Article of "present jurisdiction" over Ellis Island suffices to bar
any rival claim by New Jersey over the original portion of the
Island. New York's contention is that Article Second also provides
for its authority over filled land; New Jersey says it does
not.
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
3New York's
amici New York Historical Society et al. and
New York Landmarks Conservancy et al. would indeed take issue,
arguing that the Compact's terms "jurisdiction" and "property" as
variously employed in Articles Second and Third should be read to
preclude the New Jersey claim. But without even relying on
stare
decisis we must pass over the arguments of the named
amici for the reason that New York, the party to the case,
has in effect renounced them, or at least any benefit they might
provide. Accordingly, nothing in this opinion is meant to disparage
the scholarship those briefs embody.
782
to the Compact in 1834 would hardly have wanted to divide the
Island between New York and New Jersey, since any such division
would frustrate one of the driving purposes of the Compact, of
giving New York control over navigation and commerce in the
harbor.4
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-
4We note that New York does not claim that the recognition in
Article Third of its "exclusive jurisdiction" over the submerged
lands (which have been filled in part at the Island) includes an
element of "police power" to regulate historic preservation, land
use, and zoning, as New York's
amici argue. See Brief for
National Trust for Historic Preservation in the United States and
Municipal Art Society of New York as
Amici Curiae 26, n. 12;
Brief for New York Landmarks Conservancy, Preservation League of
New York State, and Historic Districts Council as
Amici
Curiae 17-27. Although we left this very issue open in
Central R. Co. of N J. v.
Jersey City, 209 U. S. 473, 479
(1908), counsel for New York said at oral argument that the grant
in Article Third of "exclusive jurisdiction" over the submerged
lands and waters between the States "is in the nature of police
power, over navigation and commerce in the harbor." Tr. of Oral
Arg. 34. New York's counsel argued that when the submerged lands
around the Island were filled, New York continued to have
jurisdiction over these lands when "used as anchorage, used for
docking, used as storage areas, used for lighthouses .... "
Id., at 35. New York does not argue that Article Third gave
New York the authority to regulate anything but commerce and
navigation; indeed, counsel for New York said at oral argument that
"this case isn't about Article [Third]," id., at 36, and conceded
that if it lost its Article Second argument and New Jersey was
declared sovereign over the filled land, New Jersey law would apply
to that area of the island, id., at 46. Both the New York and New
Jersey state courts have also concluded that New York's "exclusive
jurisdiction" over the harbor concerns only power to regulate
commerce and navigation. See
Kowalskie v.
Merchants
&
Miners Transp. Co., 76 N. Y. S. 2d 699, 700-701 (Sup.
Ct. 1947);
In re Gutkowski's Estate, 135 N. J. Eq. 93,
102103, 33 A. 2d 361, 365-366 (Prerog. 1943). While we are not
bound by state courts' resolution of interstate boundary disputes,
Georgia v.
South Carolina, 497 U. S. 376, 392
(1990);
Durfee v.
Duke, 375 U. S. 106, 115-116
(1963), we have no occasion to interpret the terms of the Compact
more broadly than the parties who signed it.
783
ous one, that in 1834 everybody knew what Ellis Island was. The
drafters' silence, then, can hardly be taken to convert the
Island's name into a definitional Proteus for validating
sovereignty claims.
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
5 Beyond the language cited already, nothing else in the Compact
governs the consequence of expanding the Island. The closest
approach to the subject of avulsion comes in Article Third, which
carves out an exception to New York's exclusive jurisdiction over
all the waters of the New York Harbor by specifically providing
that New Jersey shall have "exclusive jurisdiction of and over the
wharves, docks, and improvements, made and to be made on the shore
of the said state."
6 Although JUSTICE SCALIA, see
post, at 831-832, seems to
make some of the same mistakes in assessing the evidence that
JUSTICE STEVENS makes, JUSTICE SCALIA applies his interpretation of
the facts to the 1834 Compact, assuming that the agreement was
ambiguous about which State would have sovereignty over any land
added to the Island, and concluding that the parties' conduct in
the years following the Compact indicates that the filled land
belonged to New York. But this is to convert an agreement's utter
silence on an issue into contractual ambiguity; no such translation
is possible here, for the silence of the Compact was on the subject
of settled law governing avulsion, which the parties' silence
showed no intent to modify.
784
that artificial fill belongs to the owner of the submerged land
onto which it is deposited" (citing
Marine Railway &
Coal Co. v.
United States, 257 U. S. 47, 65 (1921))).
The littoral owner's act of placing artificial fill is thus treated
under the traditional common-law rule governing avulsive littoral
changes, "recognized where the boundaries between States or nations
are, by prescription or treaty, found in running water."
Nebraska v.
Iowa, 143 U. S. 359, 361
(1892). We have long recognized that a sudden shoreline change
known as avulsion (as distinct from accretion, or gradual change in
configuration) "has no effect on boundary,"
ibid, and that
this " 'is the received rule of law of nations on this point, as
laid down by all the writers of authority,'" id., at 362 (quoting 8
Op. Atty. Gen. 175, 178 (1856)), including Sir William Blackstone,
143 U. S., at 364 (citing 2 Commentaries on the Laws of England 262
(1766)). See also
Mayor of New Orleans v.
United
States, 10 Pet. 662, 717 (1836) (common-law rule of accretion
"is no less just when applied to public, than to private rights");
W. Hall, A Treatise on International Law 122 (J. Atlay 6th ed.
1909) (explaining the application of commonlaw rules of accretion
and avulsion in boundary disputes between States). This common-law
rule speaks in the silence of the Compact, and we follow it to
conclude that the lands surrounding the original Island remained
the sovereign property of New Jersey when the United States added
landfill to them.7
7 Prior to 1891, New Jersey law permitted littoral owners to
extend their land artificially by filling in or docking out; in
1891, however, New Jersey repealed that law and enacted a new
statement providing that "without the grant or permission of [the
New Jersey Riparian Commissioners] no person or corporation shall
fill in, build upon or make any erection on or reclaim any of the
lands under the tide-waters of this state." Riparian Act, N. J.
Compo Stat., vol. 4, p. 4385, § 10 (1911). Under the new law the
Riparian Commissioners were empowered to bring an ejectment action
against any person or corporation trespassing or occupying New
Jersey lands under water or previously under water. See
Seacoast
Real Estate
785
Finally, there is no merit in New York's position that depriving
it of sovereign authority over the filled land would frustrate the
primary purpose of the Compact. The State argues that the Compact's
framers must have thought it necessary to recognize New York's
sovereign authority over the islands on New Jersey's side of the
boundary line in order to assure that New York would be able to
regulate commerce and navigation in the New York Harbor. But
neither intuition nor history supports its argument. Although it is
taken for granted that one object of the Compact was to preserve
New York's authority to regulate water-borne commerce in the
harbor, a subject addressed in Article Third, the more evident
reason that the Compact declared New York's sovereignty over the
islands was simply that by 1834 New York had concededly obtained
sovereign rights over the islands through prescriptive acts. New
Jersey conceded as much when it filed its bill of complaint in
New Jersey v.
New York. While Article Third does
speak to commerce and navigation, New York's "exclusive
jurisdiction" over the water and submerged lands lying between the
two States is unaffected in any literal sense by the presence of
the fill, and there is no reason to think that recognizing New
Jersey as sovereign over the filled portions of the Island would
affect New York's ability to regulate navigation and commerce in
the harbor.
B
On the assumption that Article Second or some other Compact
provision fails to carry the day for New York, the State
Co. v.
American Timber Co., 92 N. J. Eq. 219,
219-220, 113 A. 489, 490 (1920).
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, 43 U. S. C. § 1301 (1958
ed.), which is not involved in the instant case.
786
falls back to its affirmative defense that it gained sovereign
authority over the made land by subjecting it to prescriptive acts
for a considerable period. Again, the State's position is
unsound.
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
787
"show by a preponderance of the evidence ... a long and
continuous possession of, and assertion of sovereignty over," the
filled portions of the Island, as well as New Jersey's acquiescence
in those acts of possession and jurisdiction.
Illinois v.
Kentucky, supra, at 384. Because acquiescence presupposes
knowledge, New York is bound to present either direct evidence that
New Jersey had 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. See
Georgia v.
South
Carolina, supra, at 393 (stating that it is well established"
'that open and notorious adverse possession is evidence of notice;
not of the adverse holding only, but of the title under which the
possession is held''') (quoting
Landes v.
Brant, 10
How. 348, 375 (1851));
Arkansas v.
Tennessee, supra,
at 570 (noting that sovereign rights to land can be won and lost by
"open, long-continued and uninterrupted possession of territory");
Michigan v.
Wisconsin, 270 U. S. 295, 307-308
(1926) (rejecting Michigan's claim of "excusable ignorance" on the
ground that "[t]he material facts ... have been so obvious that
knowledge of them on the part of the Michigan authorities, if it
were not shown, as it is shown, by the evidence, must necessarily
be assumed");
Louisiana v.
Mississippi, supra, at 53
(noting that "Louisiana has always asserted [ownership of the
disputed area]; and that Mississippi has repeatedly recognized it,
and not until recently has disputed it"); MacGibon, The Scope of
Acquiescence in International Law, in 31 Brit. Y. B. Int'l L. 143,
173 (H. Lauterpacht ed. 1954) ("The proposition that the possession
on which title by prescription rests must fulfil
[sic] the
requirement of notoriety is scarcely in doubt").
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.
788
Since the 19th century the most generous settled view has been
that discovery accompanied by symbolic acts gives no more than "an
inchoate title, an option, as against other states, to consolidate
the first steps by proceeding to effective occupation within a
reasonable time."s 1. Brownlie, Principles of Public International
Law 146 (4th ed. 1990); see also 1 C. Hyde, International Law 329
(rev. 2d ed. 1945); 1 L. Oppenheim, International Law §§ 222-223,
pp. 439-441 (H. Lauterpacht 5th ed. 1937); Hall, A Treatise on
International Law, at 102-103; 1 J. Moore, International Law 258
(1906); R. Phillimore, International Law 273 (2d ed. 1871); E.
Vattel, Law of Nations § 208, p. 99 (J. Chitty 6th Am. ed. 1844).
Thus, even on the remote Pacific atoll mentioned in JUSTICE
STEVENS'S dissent,
post, at 824, something well beyond "[a]
solitary fingerprint,"
post, at 815, will always be
necessary to carry the day. This rule underscores the burden on a
sovereign claimant to an atoll already subject to clear title, as
under the law of avulsion. Hence the law's emphasis on the
necessary length and continuity of adverse activity, and the
requirement to prove a knowing acquiescence in the claimant's
demonstrated design. Conversely, the original titleholder's only
obligation is that of refusing to acquiesce in the hostile behavior
of a rival sovereign claimant that was or should have been known to
be disputing the earlier title. 9 Since the parties do not start
out as equals in
8 After all, a contrary rule "would be an absolute infringement
of the natural rights of men, and repugnant to the views of nature,
which, having destined the whole earth to supply the wants of
mankind in general, gives no nation a right to appropriate to
itself a country, except for the purpose of making use of it, and
not of hindering others from deriving advantage from it." E.
Vattel, Law of Nations §208, p. 99 (J. Chitty 6th Am. ed.
1844).
9 Accordingly, New York cannot meet its burden of proving
prescription by pointing to New Jersey's failure to present
evidence that it exercised dominion over the filled portions of the
Island occupied by the United States or secondary evidence that
third parties understood the filled land
789
sovereign pretension, a single fingerprint that can never
suffice for title even when there is only one claimant will fail
all the more abjectly when a claim is made against a holder of
title independently established.
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,lO 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 ....
to be in New Jersey. That is, however, what JUSTICE STEVENS
would apparently permit New York to do. See,
e. g.,
post, at 814-815 ("There is no evidence that any of those
people ever believed that any part of Ellis Island was in the State
of New Jersey");
post, at 818 ("There is no evidence that
any [birth or death] certificate was issued by New Jersey");
post, at 819 ("There is no evidence of any Ellis Island
resident being married under New Jersey law");
post, at 821
("There is no evidence that any of [the Island] residents prepared
or received any mail or other documents describing their residence
as in New Jersey");
post, at 822 (relying upon the lack of
evidence that New Jersey provided municipal services on the
Island);
post, at 823 ("Nor is there any evidence that any
judge, state or federal, ever held that Ellis Island was a part of
New Jersey").
10 Because the United States continued to expand the Island
until 1934, the relevant period for some parts of the Island is
much shorter. As will appear, niceties of timing do not affect the
outcome here.
790
There are indeed immeasurable and imponderable circumstances and
influences besides the mere lapse of time at work to create the
conviction that in the interest of stability of order the present
possessor should be considered the rightful owner of a territory."
1 Oppenheim,
supra, § 242, at 456457. We have, however,
found 60 years adequate in one case, see
Michigan v.
Wisconsin, supra, and that holding is enough to open the
door to litigation of the relevant period here.
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.ll Thus, every reference to "Ellis Island" on a
New York tax roll or
11 For this reason there is no prescriptive significance in the
fact pointed out by JUSTICE STEVENS,
post, at 822, that a
New York state court exercised jurisdiction over an assault that
took place "upon government property at Ellis Island,"
Rettig v.
John E. Moore Co., 90 Misc. 664, 154 N. Y.
S. 124 (N. Y. App. Term 1915), there being no indication that the
court considered whether the assault took place on the filled
portion of the Island.
791
a statute outlining the confines of a voting district was
necessarily sound in part (so far as New Jersey might be concerned)
in the absence of a physical description making a claim to the new
land as well as the old. So, registrations of vital statistics did
not on their face refer to events beyond the original Island
(though knowledge of the geography would point to hospitals on the
new land in a number of instances). And the use of mailing
addresses of the Island in "New York" was likewise equivocal (a
point underscored by the fact that the Island was within the New
York postal district, whatever the political geography might
otherwise be). This vagueness was important, having a significance
that stems from the burden to give notice to the adverse party
before a prescriptive claim can begin to run. See
supra, at
786-789. Thus, New Jersey suffers nothing unless New Jersey must at
least reasonably be supposed to have known that an attempt by New
York to deal officially with "Ellis Island" referred to something
more than the original, concededly New York territory (on the
assumption that it was subject to the authority of any State at
all).
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., at 389 (finding
prescription where United States Army Corps of Engineers had
performed some work on territory in dispute);
Arkansas v.
Tennessee, 310 U. S., at 571-572 (rejecting argument that
prescription is not possible where the United States holds title to
land)), much of the standard evidence of sovereign prescription
is
792
out of the question in this case. New York, for example, has
been in no position to establish towns, roads, or public buildings,
see
Michigan v.
Wisconsin, 270 U. S., at 306-307;
Maryland v.
West Virginia, 217 U. S. 1, 40 (1910), or
otherwise actually occupy the area of the Island in dispute, see
Georgia v.
South Carolina, supra, at 393 (charging
Georgia with the knowledge that South Carolina was cultivating the
territory in question). Instead, the United States Army Corps of
Engineers and the Procurement Division of the Treasury Department
controlled all construction and improvements. Nor did New York
enjoy any substantial opportunity to assess taxes on the land and
activities on the Island, and so generate the kind of evidence of
prescription that we have found particularly persuasive in prior
cases. See
Illinois v.
Kentucky, 500 U. S., at 385;
Georgia v.
South Carolina, supra, at 392;
Arkansas v.
Tennessee, supra, at
567; Maryland
v.
West Virginia, supra, at 40-41;
Virginia v.
Tennessee, 148 U. S., at 515. Until the passage of the Buck
Act, ch. 787, 54 Stat. 1059,12 in 1940, no State or municipality
could impose taxes in a federal area located within that State or
municipality, and there is no evidence that New York collected any
taxes from activities taking place on the Island until 1991, long
after the possible prescription period was over. Nor was there any
significant opportunity for New York to grant land or register
deeds to land on the Island, actions that have produced evidence in
prior cases
12 The Buck Act provides that "[n]o person shall be relieved
from liability for payment of, collection of, or accounting for any
sales or use tax levied by any State, or by any duly constituted
taxing authority therein, having jurisdiction to levy such a tax,
on the ground that the sale or use, with respect to which such tax
is levied, occurred in whole or in part within a Federal area; and
such State or taxing authority shall have full jurisdiction and
power to levy and collect any such tax in any Federal area within
such State to the same extent and with the same effect as though
such area was not a Federal area." 4 U. S. C. § 105(a). The
definition of "Federal area" under the Act includes "any lands or
premises held or acquired by or for the use of the United States or
any department, establishment, or agency, of the United States." §
llO(e).
793
when assessing prescriptive acts, see,
e. g., Vermont v.
New Hampshire, 289 U. S., at 614-615;
Indiana v.
Kentucky, 136 U. S. 479, 510 (1890); it is undisputed that
by 1904 the United States held title to all of the Island. Nor was
there the normal opportunity for a claimant State or its agencies
to meet the normal governmental responsibility for public
protection, as in providing police and fire protection to the
disputed area. The National Government had its own firefighting
equipment and security force and rarely received any help from New
York; the State showed that it furnished assistance on only three
isolated occasions, in 1897 when the immigration depot burned to
the ground, in 1905, when a cheating federal employee working in
the telegraph office was sent off to the Ludlow Street jail in New
York City, and in 1916, when German saboteurs set fire to barges
that floated to Ellis Island and ignited the Island's
seawal1.13
13 Not only are these incidents spotty, they are also consistent
with New York's jurisdiction over the harbor waters granted by
Article Third of the Compact and with New York's undisputed
authority over the original Island. The fire of 1897 involved
buildings that were almost entirely on the original Island, and the
telegraph official arrested in 1905 was working in the main
immigration building, which was also located on the original
Island. Finally, as the Port Authority of New York and New Jersey
recognized in 1991, "[t]he City of New York has historically
provided fireboat protection for the waterfront areas of the New
York Harbor." N. Y. Exh. 917 (letter to Norman Steisel, First
Deputy Mayor, dated Apr. 12, 1991). Accordingly, putting out the
fire on the seawall of the Island in 1916 was not an apparent act
of prescription; it was in keeping with New York's exclusive
jurisdiction over waters of the harbor. But even leaving New York's
harbor jurisdiction aside, the act of one sovereign in helping a
neighboring government put out a fire would hardly suggest that
territorial aggrandizement was afoot.
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-
794
The United States' occupation of the land under the cession
affected not only New York's opportunity to act in support of its
claim but also the degree of attention that New Jersey may
reasonably be supposed to have paid to whatever acts New York
claims to have performed in asserting its jurisdiction. Thus, for
example, a State should well know that the residents of a populated
enclave of its land have wholly failed to register or vote; but it
is far less likely that New Jersey was aware of such resident
population as the United States did maintain on the Island, or that
it had any idea that some of those residents were registered to
vote in New York instead of some other place where they might vote
as absentees. Governor Rockefeller put this point well when he
remarked in 1959 that "[f]or more than fifty years, the question
[of which State has sovereignty over Ellis Island] has been of
relatively little importance because the Federal Government has
owned and administered [the Island]." N. J. Exh. 123 (letter from
Governor Rockefeller to Louis Harris, dated June 4, 1959).
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.
795
under the Compact rendered any statement of "Ellis Island, New
York" equivocal, without more, for prescriptive purposes, and the
National Government's occupation tended to limit the notice to New
Jersey of such acts as New York did perform. To weigh New York's
evidence with an appreciation of these twin hurdles is not, as
JUSTICE STEVENS charges, to resort to hypertechnicality, but to
recognize that New York has a substantial burden to establish that
it gave good notice to New Jersey of its designs on the made land.
We accordingly examine the evidence of prescriptive activity that
New York did serve up, which is closer to famine than feast. It
falls into four principal categories.
1
There is some evidence that N ew 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 five 15 marriage certificates, four from 1901 and one
from 1914.16 For a period of
14 New York also presented evidence of 17 birth certificates
recording births before the 1897 fire on the Island. These
certificates are not evidence of prescription, however, because New
York failed to show that these births took place on the original
Island; nothing in the record indicates where the hospital was
located in 1897.
15 There are actually six certificates in evidence, but one is a
duplicate. 16 The marriage certificates are augmented by Edward
Corsi's interview of an Island employee named Frank Martocci, who
recalled "numberless" weddings on the Island (said to have been
solemnized under New York law) until the policy of marrying
immigrants on the Island was dropped and the immigrants were
brought to City Hall in New York instead. N. Y. Exh. 74, p. 409 (E.
Corsi, In the Shadow of Liberty: The Chronicle of Ellis Island 87
(1935)). One of New York's witnesses, Harlan Unrau, the historian
for the National Park Service, testified that Fiorello La Guardia's
memoirs also describe trips to and from the Island to Manhattan to
tie the knot. Tr. 3615-3618 (Aug. 8, 1996). This evidence amounts
to little in the absence of recording, and at most would show that
immigrants undomi-
796
64 years, this does not add up to much,17 and even its meager
significance is diminished by the absence of evidence of any
regulation of the State or City of New York or the National
Government providing for the registration in New York of births and
deaths that occurred on the Island. Of the marriage certificates,
the one dated 1914 indicates that the marriage took place on
Manhattan Island, not Ellis Island, and the 1901 certificates
reflect marriages that were probably performed in the Main
Building, located on the original Island. There is no evidence that
any marriages solemnized under New York law took place on the
filled portion of the Island. Immigration officials were apparently
concerned about complying with a law passed by New York in 1907
that required couples getting married to obtain a marriage license
from the town in which the woman resided. 1907 N. Y. Laws, ch. 742.
But that same law also provided that if the woman or both parties
were nonresidents of the State, the marriage license could be
obtained from the State in which the marriage was to be performed.
Ibid. Obtaining aNew York marriage license therefore carried
no necessary implication of residence, and at the times in question
the immigrants were, of course, undomiciled in America.18 In sum,
the foregoing evidence cannot possibly be claimed to show any
continuous practice, and 32 record entries over more than six
decades is not even arguably persuasive as circumstantial evidence
that New York was acting on a claim of
ciled in America were probably married in the Main Building at
one time and later were taken to Manhattan.
17New York's expert testified that from 1890 to 1954 there were
hundreds of births and thousands of deaths on the Island. Tr.
2719-2720, 2740 (July 31, 1996).
18 The record suggests that all the marriages taking place on
the Island and later at City Hall in Manhattan were marriages
between immigrants or between a resident of the United States and a
person who had just arrived. Immigration officials hoped that
requiring young single women to marry their fiancés before they
would be admitted to the country would help stem the importation of
prostitutes.
797
right to any part of the Island or that New Jersey's officials
must have known about the acts or the claim.
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
798
the filled portions of the Island in its voting districts. To
the extent that the registration lists, on the other hand, have at
least some tendency to suggest activity on the Island, there are
lists for only 10 years out of the prescriptive period (1917, 1918,
1919, 1925, 1926, 1930, 1936, 1939, 1945, and 1953), and why New
Jersey might have known about these lists is not addressed by any
specific evidence.
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
799
his family from July to September 1940 when he was one year old,
testified that although he had "no personal recollection" of living
on the Island, he has always thought that at that time he was
living in New York. Tr. 3144-3145 (Aug. 5, 1996).19
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.2o
While the record does indeed contain some such evidence
favorable to New York, other indications point the other way.
19 JUSTICE STEVENS contends that "[t]he evidence indicates that
the millions of immigrants entering the country ... believed that
Ellis Island was located in New York."
Post, at 820. Because
New York presented no testimony to this effect, JUSTICE STEVENS
relies upon steamship tickets, certificates of arrival, and landing
cards that stated that the holder was going to or had arrived in
New York. These various documents are entirely accurate insofar as
every immigrant arriving at Ellis Island was processed through the
New York Immigration District. But the documents prove nothing for
this case, since throughout the period from 1891 to 1956 the New
York Immigration District included northern New Jersey.
20 When the understanding of national officials takes the form
of published records, it may help to place a State on notice of an
adverse claim and present occasion to protest or acquiesce. See,
e. g., California v.
Nevada, 447 U. S., at 129-130
(noting that both States had adopted the United States Coast and
Geodetic Survey line by statute and used it for nearly 80 years);
Vermont v.
New Hampshire, 289 U. S. 593, 613 (1933)
(there was evidence that both States were familiar with
congressional resolutions locating the disputed territory in
Vermont but New Hampshire did not object);
Louisiana v.
Mississippi, 202
U. S. 1, 53-58 (1906).
800
In fact, the full record reveals not merely one understanding on
the part of some United States officials about the Island's
sovereignty, but three different understandings on this point,
inconsistent with each other and inconstant over time.
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.,
21 In 1905, a contract for work on the Island required that the
work "must be of the best quality and in strict accordance with the
present rules and regulations of the Department of Water Supply,
Gas and Electricity, New York, N. Y." N. Y. Exh. 638, p. 47. This
is the only contract on record where contractors were required to
follow New York regulations as if they were binding.
801
and there is evidence that from 1931 to 1934 construction
contracts for work on filled portions of the Island provided that
wages for the City of New York applied.22 The National Government
also treated Ellis Island as part of New York in the 1900, 1910,
1920, and 1940 national censuses, and throughout the prescription
period various officials referred to "Ellis Island, New York," in
correspondence.23
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
22 New York also presented evidence that in 1934 New York
processed two workmen compensation claims for injuries sustained on
filled land; it was not until 1936, however, that Congress
permitted the application of state law to federal workmen's
compensation claims. See
Murray v.
Joe Gerrick &
Co., 291 U. S.
315 (1934). Nor is it clear from the record that the processing
of these claims actually involved the application of New York law;
the processing may be explained simply by the fact that the
contractor for whom the victims worked was located in New York.
23 In
United States ex rel. Belardi v.
Day, 50
F.2d 816, 817 (1931), the Third Circuit held that Ellis Island was
within the territorial jurisdiction of the District Courts of the
Eastern and Southern Districts of New York. The court explained
that "[w]hen [the Island] was property of New York it was within
one or another of the counties of that state or within the waters
thereof," and the former 28 U. S. C. § 178 (now 28 U. S. C. § 112)
places the waters of the New York counties within the concurrent
jurisdiction of the Southern and Eastern Districts. The court held
that even though the 1834 Compact placed the Island on New Jersey's
side of the boundary, "[t]he running of a boundary line in 1834
through the waters dividing the states of New York and New Jersey
cannot disturb the statutory designation of jurisdiction in 1910."
50 F. 2d, at 817. Thus, the Third Circuit simply read the
jurisdictional statute as placing any location within the waters
subject to New York jurisdiction (as, under the Compact, the harbor
waters were, for police purposes, even on the New Jersey side of
the line) within the concurrent jurisdiction of the two named
federal districts. The Third Circuit explicitly avoided determining
anything about state sovereignty over the Island.
802
City Ordinances will not apply to the same in regard to building
matters." N. Y. Exh. 775, sheet 00. From 1890 to 1911, however, the
federal spokesmen did not stop at saying merely that the Island was
not part of New York; in these years the federal Harbor Line Board
prepared surveys of recommended Island pierhead and bulkhead lines
for the approval of the Secretary of War, all of which were titled
"Pierhead & Bulkhead Lines for Ellis' Island, New Jersey, New
York Harbor, as recommended by the New York Harbor Line Board."
App. to Exceptions of New Jersey 21a, 22a.24 In 1904, as said
before, the United States made an application to the Riparian
Commission of New Jersey for certain lands under water adjacent to
Ellis Island. The United States Attorney General, William Moody, at
that time explained that the Government had not made the
application earlier because it had previously "proceeded upon the
theory that the ownership of the lands under water around Ellis
Island was in the State of New York," but changed its view because
"it would seem from [the Compact] that the ownership of the lands
under water west of the middle of the Hudson River and of the Bay
of New York is in the State of New Jersey." N. J. Exh. 351 (letter
from U. S. Atty. Gen. William Moody to the Riparian Comm'n of New
Jersey 1-2, dated July 15, 1904).25 In 1933, New Jersey got the nod
again when the
24JUSTICE STEVENS brands this ascription to New Jersey as
"obviously ... a mistake."
Post, at 826, n. 17. But the
mistake (as to the original Island) was not obvious. See n. 25,
infra.
25 The New York Times reported that "[t]he chief interest in the
application lies in the fact that it is a recognition of the claim
that New Jersey and not New York owns the submerged lands in the
vicinity of Ellis Island." N. J. Exh. 5 (N. Y. Times, July 19,
1904).
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
803
INS applied to New Jersey for permission to construct a new
seawall on filled land, which it received.26
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
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).
26JUSTICE STEVENS,
post, at 826, n. 17, contends that
Corsi, who made the application on behalf of the INS, must have
thought the seawall would be constructed in New York because he
entered "New York" in a space on the permit application asking
"[w]here work is contemplated." If Corsi truly thought the seawall
was going to be constructed in New York, however, he must have been
a whimsical soul to apply to New Jersey for a permit.
804
Hamilton F. Kean and Representative Mary T. Norton, wrote to the
Department of Labor expressing concern that federal contractors
were not hiring members of New Jersey's union locals even though
the Island work site was part of New Jersey. N. J. Exhs. 12, 24-27.
The Department of Labor asked the Procurement Division of the
Public Works Branch of the Treasury Department for advice on this
issue, and the Procurement Division originally decided that
"[s]ince Ellis Island is not clearly within the boundary lines of
either state and is clearly outside of the jurisdiction of either,
workers should be drawn in roughly equal proportions from the two
states." N. J. Exhs. 24, 33-35. When the Jersey City, New Jersey,
chapter of Bricklayers, Masons, and Plasterers International Union
would not settle for this neutrality and pressed the Treasury
Department for a statement that Ellis Island was in New Jersey, the
Department managed to lob the question back to the Department of
Labor, whose solicitor (later Judge) Charles E. Wyzanski, Jr., sent
this response: "[I]t seems to me perfectly apparent that your
answer is sound: 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 anyone of the forty-eight states." N. J.
Exh. 43. And yet matters did not rest there for long, for when a
Government contractor, the Driscoll Company, later learned that it
would have to employ both New York and New Jersey workers, it wrote
to the Treasury Department calling attention to the 1834 Compact,
of which the agency apparently had been unaware. With skillful
evasiveness, the Treasury replied that under the Compact, "[t]he
question appears to be one of fact: whether Ellis Island is within
the territorial limits of New York or New Jersey. This does not
seem to be a matter for determination by the Board of Labor
Review." N. J. Exh. 51. When the contractor continued to protest
any requirement to hire workers from New Jersey, the Procurement
Division
805
responded that "Article 2 of [the 1834 Compact] seems to
indicate clearly that New York has jurisdiction over Ellis Island."
N. J. Exh. 52. The union local and Norton protested this decision,
arguing that Solicitor Wyzanski was correct and calling attention
to New Jersey's 1933 permit to the United States for work on the
Island's seawall, as well as the 1904 deed from New Jersey to the
United States conveying title to the submerged lands. The
Procurement Division, again erroneously citing Article Second of
the Compact, refused to budge.
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
806
some voting lists, N ew York has shown nothing more than a
modest number of sporadic acts that might be regarded as
prescriptive. Even the compilations of voting lists from time to
time shared the characteristic of N ew York's other official acts
in occurring off the Island, being either equivocal in their
territorial references or ill calculated to give notice to New
Jersey. Surely it is highly significant that the acts claimed as
prescription by New York did not leave officials of the Island's
actual occupants, the United States, with a settled or consistent
understanding that the filled land might be subject to the
sovereignty of New York.
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,
807
argue that evidence going to the meaning of the Compact's terms
has been lost as a result of delay by New Jersey. Indeed, several
of New York's
amici have proffered extensive material
bearing on those terms (though to no avail as explained in footnote
3, supra), and the State itself has relied upon historical records
of littoral filling practices in the Compact period, without
suggesting that delay by New Jersey contributed to the loss of any
such evidence.
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
808
define the shoreline, the second challenging a miniscule detail
of that line. Its third exception questions the authority to
improve upon that line, once located.
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., at
606; Handly's Lessee v.
Anthony, 5 Wheat., at 383. 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.
809
We assume that the parties to the Compact were well aware of our
precedent and would have explicitly provided for a high-water mark
boundary if that is what they intended.
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
810
westerly shore, and the fact that the Compact so provides raises
no implication that anything but the general rule of sovereignty to
mean low water was intended with respect to any shoreline. The
provision in question, indeed, confirms the intent of the
compacting parties to follow the general, low-water mark rule.
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 Compact Clause, Art. I, §
10, cl. 3, provides that "[n]o State shall, without the Consent of
Congress, ... enter into any Agreement or Compact with another
State .... " As we explained long ago, once a compact between
States has been approved, "it settles the line or original right;
it is the law of the case binding on the states and its citizens,
as fully as if it had been never contested."
Rhode Island v.
Massachu-
811
setts, 12 Pet. 657, 727 (1838). Indeed, congressional
consent "transforms an interstate compact within [the Compact]
Clause into a law of the United States,"
Cuyler v.
Adams, 449 U.
S. 433, 438 (1981); accord,
Texas v.
New Mexico,
462 U. S. 554, 564 (1983). Just as if a court were addressing a
federal statute, then, the "first and last order of business" of a
court addressing an approved interstate compact "is interpreting
the compact."
Id., at 567-568. "[U]nless the compact to
which Congress has consented is somehow unconstitutional, no court
may order relief inconsistent with its express terms," id., at 564,
no matter what the equities of the circumstances might otherwise
invite. See
Arizona v.
California, 373 U. S. 546, 565-566
(1963) ("[C]ourts have no power to substitute their own notions of
an 'equitable apportionment' for the apportionment chosen by
Congress");
Washington v.
Oregon, 211 U. S. 127, 135 (1908)
(noting that Congress had established the boundary between
Washington and Oregon in the middle of the north channel, and that
"[t]he courts have no power to change the boundary thus prescribed
and establish it at the middle of some other channel," even though
changes in the waterway over the course of time seemed to indicate
the equity of altering the boundary line); cf.
New Jersey v.
Delaware, 291
U. S. 361, 385
(1934); Maryland v.
West Virginia,
217 U. S., at 46.
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
27 This is the reason that the contemporary inconvenience of the
boundary is no threat to the plausibility of the evaluation of the
prescription evidence by the Special Master and the Court, as
JUSTICE STEVENS suggests. See
post, at 828-829.
812
therefore be "a matter for arrangement and settlement between
the States themselves, with the consent of Congress."
Indiana v.
Kentucky, 136 U. S., at 508; see
Minnesota v.
Wisconsin, 252 U. S. 273, 283 (1920)
("It seems appropriate to repeat the suggestion ... that the
parties endeavor with consent of Congress to adjust their
boundaries").
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
813
rely. See
ante, at 773-775, 781-782, and nn. 3,4
(discussing Article Third). The State has basically rested its case
upon Article First and Article Second. See Brief for Defendant
11-15; Tr. of Oral Arg. 33, 35-36, 46. Those Articles specify that
Ellis Island is in New Jersey waters, for the border between the
States lies far to the east. Those Articles do mention an exception
for New York's "present jurisdiction of and over Bedlow's and
Ellis's islands," but they are silent about what would happen to an
Ellis Island "avulsion," i.
e., the creation of significant
additional territory through landfill. As JUSTICE SOUTER points
out,
ante, at 783, n. 6, silence is not ambiguity; silence
means that ordinary background law applies; and that ordinary
background law gives an island's avulsion not to the State that
owns the island, but to the State in whose waters the avulsion is
found. See
Georgia v.
South Carolina, 497 U. S. 376, 404
(1990);
Nebraska v.
Iowa, 143 U. S. 359, 361-362
(1892); see also
ante, at 783-784.
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 anyone of the fortyeight 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,
814
one cannot reasonably expect New Jersey to have mounted a major
protest against
New York's assertions of "sovereignty"
(modest as they were) over territory that was within the control of
the Federal Government. Nor can one expect the immigrants
themselves to have taken a particular interest in state boundaries,
for most would have thought not in terms of "New York" or "New
Jersey," but of a New World that offered them opportunities denied
them by the Old. Given this background, any legal rule of
"prescription" that found New York to have surmounted its high
barrier here would create serious problems of fairness in other
cases.
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
815
part of Ellis Island was in the State of New Jersey. What
evidence is available uniformly supports the proposition that
whenever a question of state authority was considered by any
members of that multitude of immigrants and citizens, both they and
the responsible authorities in New York assumed that all of Ellis
Island was a part of New York. The relevant facts were sufficiently
public and obvious to support a presumption that, with one
temporary exception, the authorities in New Jersey shared that
belief. The fact that all of the relevant evidence concerning that
period points in the same direction is far more significant than
the fact that the quantity of evidence supporting certain
propositions is not large. A solitary fingerprint may establish a
preponderance of the evidence when there is a total absence of
evidence pointing in another direction.
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
816
accorded exclusive jurisdiction over those waters.1 In 1904,
when New Jersey conveyed to the United States its entire "right,
title, claim and interest of every kind" in those submerged lands,
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.
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
1 Article Third also preserved New Jersey's jurisdiction "over
the wharves, docks, and improvements, made and to be made on the
shore of the said state," but that provision is not relevant
because the original additions to Ellis Island were improvements to
the shore of New York, not New Jersey. 4 Stat. 710.
2 These figures refer to nonimmigrants. The 1920 federal census
stated that there also were 270 "patients" and 97 "immigrants" on
the Island. The 1940 federal census stated that 717 people lived on
the Island but does not indicate how many of them were
nonimmigrants. Since the 1940
817
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 "19441945" 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
total was roughly 50% greater than the 1920 total, the number of
nonimmigrants may also have risen by a similar percentage.
3 The 1925 records refer to 25 voters from Ellis Island, 14 of
whom gave their addresses as on either Island No. 2 or Island No.3,
both of which are fill.
818
programs."
Franklin v.
Massachusetts, 505 U. S. 788, 814
(1992). Given the fact that a shift of only one or two hundred
persons from one State to another might cause a State either to
lose one of its seats in Congress or to fail to gain the number
warranted by its relative increase in population, the accuracy of
the census count is surely a matter of vital importance to the
State.4 The consistent treatment of Ellis Island residents as
residents of New York in the federal census is a matter that must
have come to the attention of New Jersey and which was clearly of
sufficient importance to prompt a vigorous objection if responsible
state officials believed that those residents really lived in New
Jersey. The fact that the Island was under federal control does not
minimize in the slightest the importance of the census figures, or
the importance of the other public acts that authorized Ellis
Island residents to vote in New York elections.
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-
4 See generally Department of Commerce v. Montana,
503 U. S. 442 (1992).
819
formed the governmental function of recording the births and
deaths on Ellis Island, and that the families of those decedents
and newborn infants thought that those events occurred in New
York.
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.
5 Although only a few marriage licenses are in the record, they
are all New York licenses.
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.
6 One Ellis Island employee, who worked on the Island during the
early part of the century, remembered as follows:
'''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).
820
V
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,
7 One such Landing Card read as follows:
821
it is certainly fair to infer that the new immigrants believed
that they had arrived in New York.
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 record 8 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-
8 The record contains over 2,000 documents (some of which are
hundreds of pages long) and over 4,000 pages of trial
testimony.
9Corsi 114.
822
tion accident on the Island. In 1942, the New York City Police
Department formed a special squad to assist federal officials in
questioning immigrants arriving at the Island. Thus, despite the
fact that federal officials were in control of the Island, these
incidents are consistent with the view that New York retained an
interest in the Island, but New Jersey did not.10
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 IslandY 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 N ew Jersey did not have jurisdiction over a habeas corpus
petition filed by an alien detained on the Island.12 The federal
judges sitting in
10 The Master discounted this evidence by stating that there was
evidence that New Jersey also policed the Island. Final Report of
Special Master 114. The evidence cited, however, involved a single
incident in 1966-over 10 years after the end of the relevant
period. Tr. 3636-3637 (Aug. 8, 1996); see also 3 H. Unrau, Ellis
Island, Statute of Liberty National Monument, New York-New Jersey
1173 (1984).
11
Rettig v.
John E. Moore Co., 90 Misc. 664, 154
N. Y. S. 124 (App.
Term 1915).
12 "The first contention is predicated on the assertion that
Ellis Island is in the District of New Jersey and therefore within
the jurisdiction of the District Court for that district.
"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 (28 U. S. C. § 178, Judicial
Code, § 97) prescribed the territorial limits of the Southern
District of New York and the Eastern District of New York as
embracing certain counties 'with the waters thereof' and provided
that the District Courts for the Southern and Eastern Districts
'shall have concurrent jurisdiction over the waters within the
counties of New York, Kings, Queens, Nassau, Richmond, and Suffolk.
* * *, This it would
823
the Southern District of New York exercised jurisdiction over
cases arising out of the detention or deportation of aliens on
Ellis Island. During the relevant period there is no evidence that
any judge, state or federal, considered the possibility that Ellis
Island might be in two States. Nor is there any evidence that any
judge, state or federal, ever held that Ellis Island was a part of
New Jersey.13
seem vested federal jurisdiction with respect to Ellis Island in
the District Courts of the two named New York districts. But the
relator, showing that by the Act of June 28, 1834 (4 Stat. 708) a
boundary line between the states of New York and New Jersey had
been run down the Hudson River to the sea, 'submitted' that Ellis
Island is on the westerly or New Jersey side of the harbor and
therefore is in-or 'not entirely' outside-the District of New
Jersey and within at least 'the concurrent jurisdiction of the
District Court for the District of New Jersey and the District
Courts for the Eastern and Southern Districts of New York.'
Jurisdiction is determined by statute, not by geography. The
statute expressly, and therefore exclusively, placed federal
jurisdiction of Ellis Island in the District Courts of the two
named New York districts. The running of a boundary line in 1834
through the waters dividing the states of New York and New Jersey
cannot disturb the statutory designation of jurisdiction in
1910.
"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).
13 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, 28 U. S. C. § 112, and of New York's first
judicial district, N. Y. Const. art. VI, § 6; see
Rettig v.
John E. Moore Co., 90 Misc. 664, 154 N. Y. S. 124 (N. Y.
App. Term 1915) (civil suit for assault committed 'upon government
property at Ellis Island'). The government treats the entire area
of Ellis Island as part of Manhattan for census purposes and has
assigned a New York postal zip code to the Island. Those who have
resided on Ellis Island, both before and after the Compact, have
been treated as citizens of New York. In order to avoid liability
in this case, the government asserts for the first time that
certain portions of Ellis Island belong to New
824
VIII
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 evidence 14 offered by New Jersey to
support the proposition that it did not accept New York's
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).
14 There was also evidence that Hudson County, New Jersey, had
placed Ellis Island on its tax roles. The county, however, did not
ever attempt to collect taxes; because the Island was owned by the
Federal Government, Ellis Island was marked as "exempt."
825
prescription of the entire Island relates to Representative
Norton's efforts in 1934 and 1935 to persuade federal officials to
use New Jersey labor in construction work on Ellis and Bedloe's
Islands. In her letter of August 25, 1934, she advised the Division
of Procurement of the Treasury Department that a local union in her
home city contended 15 that "these islands are part and parcel of
the State of New Jersey." 16 On March 19, 1935, she again advanced
the position that Ellis Island was in New Jersey. When the Treasury
Department ultimately rejected her submission, the matter appears
to have been dropped.
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-
15 In a letter of July 31, 1934, the union wrote to
Representative Norton:
"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).
16 N. J. Exh. 29 (letter of Honorable Mary T. Norton, House of
Representatives, to Division of Procurement, Treasury
Department).
826
mission, she acquiesced in that rejection and the entire State
joined in that acquiescence for another 20 years. Finally, the fact
that her correspondence espoused the manifestly untenable position
that the entire Island belonged to New Jersey makes it rather clear
that she was not advancing a serious claim on behalf of the
State.17
17The Court points to a few incidents when federal officials
equivocated over whether Ellis Island belonged to New York or New
Jersey.
Ante, at 801-805. These incidents do not, of course,
speak to New Jersey's nonacquiescence; nonetheless, they are
relevant to New York's claims of prescription. None of these
incidents, however, is significant.
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
827
x
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,
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.
828
one may infer from JUSTICE BREYER'S opinion that his
grandparents shared that view as well.
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 ofland most intimately
and functionally connected to the operation
18Because I think it clear that New York has acquired the power
to govern the entire Island by prescription, it is not necessary
for me to comment on the eminently sensible approach set forth by
JUSTICE SCALIA,
post, p. 829.
829
of the Main Building. The Master correctly stated that this
result is "neither just nor fair to New York." 19
In my opinion it is not only the bizarre boundary that is unfair
to New York. It is the failure to draw the commonsense 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
19Final Report of Special Master 163.
830
could have been eliminated only by prescription. The status of
Ellis Island is governed by a contract between New York and New
Jersey-the Compact of 1834-that is, on this point, poorly drafted
and ambiguous. * It is hornbook contracts
*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-
831
law that the practical construction of an ambiguous agreement
revealed by later conduct of the parties is good indication of its
meaning. See,
e. g., 17 A Am. Jur. 2d, Contracts § 357
(1991); Restatement (Second) of Contracts §§ 202(4), 203 (1979);
Uniform Commercial Code § 2-208(1), 1 U. L. A. 407 (1989).
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
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.
832
zones, and (in the end) application of the Davis-Bacon Act, 46
Stat. 1494. That practical construction suffices, in my view, to
establish what the Compact of 1834 meant.
Comments
Be the first to comment
Leave a Comment