Equal Footing Doctrine

Transcription

1 New Jersey Presentation 2016 All Rights Reserved Kristopher M. Kline, P.L.S., G.S.I. The "equal footing" clause has long been held to refer to political rights and to sovereignty. It does not, of course, include economic stature or standing. There has never been equality among the States in that sense. Some States when they entered the Union had within their boundaries tracts of land belonging to the Federal Government; others were sovereigns of their soil. Equal Footing Doctrine Some had special agreements with the Federal Government governing property within their borders. Area, location, geology, and latitude have created great diversity in the economic aspects of the several States. The requirement of equal footing was designed not to wipe out those diversities but to create parity as respects political standing and sovereignty. Copyright 2016, Kristopher M. Kline, 2Point, Inc. And the Territories acquired by Congress, whether by deed of cession from the original States, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as States, upon an equal footing with the original States in all respects; and the title and dominion of the tide waters and the lands under them are held by the United States for the benefit of the whole people, and, as this court has often said, in cases above cited, "in trust for the future States." Yet the "equal footing" clause has long been held to have a direct effect on certain property rights. Thus the question early arose in controversies between the Federal Government and the States as to the ownership of the shores of navigable waters and the soils under them. It was consistently held that to deny to the States, admitted subsequent to the formation of the Union, ownership of this property would deny them admission on an equal footing with the original States, since the original States did not grant these properties to the United States but reserved them to themselves. 1

2 "Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. See Massachusetts v. New York, 271 U.S. 65, 89. For that reason, upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, In 1963 the original survey was performed in order to provide him with the subdivision map necessary to the development of the tract. When the residences were constructed and purchased, the individual owners had surveys of their lots conducted, defining the perimeters of their properties. In all instances the state-line boundary was determined, not by a new survey but rather by reference to the filed subdivision map containing the error. This court finds that these surveys were, from a statute of limitations point of view, acts separate and distinct from the original 1963 survey. Accordingly, in early 1973 Wulster hired Ostertag and McDougall, another engineering and surveying firm, to prepare the necessary survey. As a result of this survey it was discovered that the 1963 survey prepared by Conklin Associates had erroneously located the New York State-New Jersey boundary line which served as the dividing line of the Wells and Wulster properties. In addition to the $ 30,000 paid to Wulster there were additional expenses of $ 3, incurred by Commonwealth in resurveying the properties, in recording deeds in Rockland County, N.Y., and for other related matters. Further, this court is satisfied that the evidence at trial adequately supports the charge of defendants' culpability. Expert testimony revealed that field markers, or monuments, delineate the state boundary at regular intervals. Rather than locate more than one such monument, as would have been the proper practice, defendants located one. As a result, the error was made. This bespoke negligence. Also, it is well to note that while these surveys were not certified or performed by Harrison, his liability rests on the settled principle of partnership law that all partners are jointly and severally liable for the torts committed by a member of the partnership in the course of partnership business. Defendants' argument that the individual lot surveys are but restatements or a continuation of a single act and hence are not now actionable is not persuasive and misperceives the realities of the error. Riparian Boundaries 2

3 Two centuries ago, surveyors from Georgia and Tennessee marched through the region's mountains and hollows to mark the official border between the two states. They were supposed to follow the 35th parallel, according to an agreement approved in 1802 by Congress That has led to years of water wars between Georgia and Tennessee, as the Peach state's population has exploded, out-stripping its water supply Virginia only granted the territory on the northern bank of the river to low-water mark, although, by the compact of 1792, between Virginia and Kentucky, a concurrent jurisdiction over the river is accorded to Ohio and Kentucky. The Ohio is a navigable river; it would be so considered, even if it were not expressly declared to be such by the deed of cession. In New Orleans v. United States, 10 Pet , this court said: "The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain." This, however, does not determine the question, for there are two kinds of navigable rivers. If we resort to the technical and legal definition of a navigable river, it is that part of the stream only where the tide ebbs and flows. The shore, below high-water mark, belongs to the public. But grants of lands, bounded on rivers, or upon the margins of the same, above tide-water, carry the exclusive right of the grantee to low-water mark, or, as some of the authorities say, to the center of the stream. None of our rivers, in the western country, are navigable in the technical acceptation of the term. They all fall within the second class. The distinction was originally made in order to define the jurisdiction of the admiralty courts. These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between States or nations are, by prescription or treaty, found in running water. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel. Copyright 2016, Kristopher M. Kline, 2Point, Inc. In Cooper v. Smith, 9 Serg. & R. 26, 32, it was held that the right to the bed of a navigable river, where the tide did not reach, was presumed to belong to the public, while the right to the shore belonged to the adjacent proprietor. And in Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 74, it was decided that the owners of the soil adjacent to the large rivers, in Pennsylvania, do not own the bed of the river to the center. This appears to have been the settled law in Pennsylvania from a very early period. It has, in some measure, effaced the common law distinction between rivers navigable and not navigable. 3

4 STRIP & GORE DOCTRINE It is true that parts of the thing may be excluded or excepted from the grant, or may exist in separate hands by prescription; or they may be granted by name together with the land; but in no case does the mere omission to mention them operate as an exclusion. No matter how particularly the area of the land may be described; no matter how definitely bounded, it will carry every part, whether above, below, or collateral. Upon construction of law, which does not require express words for the grant of every part, as houses, fences, mines, or the elements of water or air, which all pass by the word "land;" and, as a grant of land by certain boundaries, prima facie passes all such parts to the grantee, usque ad caelum et ad infernos; so, within the same principle, it passes the adjoining fresh-water stream, usque ad filum aquae. The passing of the one kind may just as well be questioned as another, not only in the eye of the law, but of common sense and reason. The cases show, what it is difficult for the human mind to resist, that the parties never mean to leave a narrow strip between the land and the river, merely because some stake or tree, or even all the stakes or trees of the line, stand at a slight distance from the river. The expression of an intent to run the line along the stream, reaches a distinct natural monument which overcomes the others. That the fact that the marked corner called for stands four rods from the water, does not create any ambiguity in the terms, down the creek with the several meanders thereof. They import the water's edge at low water, which is a decided natural boundary, and must control a call for corner trees on the bank. Within the first maxim it is said, one shall not build so as to overhang another's premises, darken his lights, or confine the air; and surely it would be more absurd for the law to give a man the shore or side of a fresh-water river; and yet, by saving the bed to the grantor, make the owner of the land a trespasser, every time he should slake his thirst or wash his hands in the stream. Accretion, Erosion, Avulsion 4

5 In New Orleans v. United States, 10 Pet , this court said: "The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain. Copyright 2016, Kristopher M. Kline, 2Point, Inc....if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary. It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, sec. 159, it is said: "But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates." What effect, if any, does change in the channel of a creek have upon the title of riparian owners? Erosive accretions attach to the land on which they fall. Accessions or abstractions, particle on particle, are so necessary and so general that title cannot be made to depend upon them. When this is all, a stream once a line continues to be the line. But where there is avulsion or sudden change from any cause, natural or artificial, by which a stream leaves its old bed and cuts for itself a new channel, the rule is otherwise, for title cannot be made to depend upon the meanderings of vagrant streams. These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between States or nations are, by prescription or treaty, found in running water. With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other, that is, by the gradual, and, as it were, insensible accession or abstraction of mere particles, the river as it runs continues to be the boundary. In Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 304, 62 L.Ed. 638, L.R.A. 1918D, 258, This statement of the law appears in Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 398, 36 L.Ed. 186, approved and copied from Vattel (1 Vattel, Droit des Gens, ch. 22, sections ): "But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course and runs into one of the two neighboring States, the bed which it has abandoned becomes thenceforward their boundary Copyright 2016, Kristopher M. Kline, 2Point, Inc. 5

6 Such a boundary line could not be permanent, but was subject to erosion and accretion accordingly as the line of the flow of the tide advanced or receded. The determination of the boundary line, as forever fixed by the chart on the date the districts were created in 1927, ignores the changes and variations to which such waters were necessarily subject. "When land bordering a body of water is increased by accretion, that is to say, by such a slow and gradual deposit of particles that its progress cannot be always measured even though its results may be discerned from time to time, the new land thus formed belongs to the owner of the upland to which it attaches." Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream. Accretion is the usual and ordinary case of the shifting of earth by the action of the waters and avulsion is of a somewhat extraordinary nature. The rule of accretion and erosion was clearly stated "When land bordering a body of water is increased by accretion, that is to say, by such a slow and gradual deposit of particles that its progress cannot be always measured even though its results may be discerned from time to time, the new land thus formed belongs to the owner of the upland to which it attaches. By the same reason the rule is that when the sea, lake, or navigable stream gradually and imperceptibly encroaches upon the land, the loss falls upon the owner, and the land thus lost by erosion returns to the ownership of the state". Avulsion may exist, first, where a stream changes its course, and, second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore. As applied to the second class: Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another suddenly and by the perceptible action of the water. Where the change to the channel of a river is made suddenly and violently, and is visible, and the effect is certain, it is said to be by avulsion. Copyright 2016, Kristopher M. Kline, 2Point, Inc. Controversies growing out of the shifting of earth by the action of the waters in running streams gave rise to the doctrines of accretion and avulsion. In cases of accretion, owing to the difficulty of tracing the original source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title. In Coulthard v. Davis, 101 Iowa 625, 70 N.W. 716, it is held: "Land detached from one side of a river by a sudden change in the channel, and left connected with land on the other side, in such manner as to be capable of identification, is not an accretion." The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification there can be no avulsion in a legal sense. 6

7 "That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. "The term 'avulsion' on the one hand and 'gradual and imperceptible accretion' on the other, are used by writers on alluvion to contradistinguish a sudden disruption of a piece of ground from one man's land to another's, which may be followed and identified, from that increment which slowly or rapidly results from floods, but which is utterly beyond the power of identification. Copyright 2016, Kristopher M. Kline, 2Point, Inc. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. "When land is torn from the banks of this stream (Missouri) and plunged into its turbid waters, its component parts are never after distinguishable--the sand and clay and soil, and trees, and roots and logs are soon utterly undistinguishable from any other similar substances, and their destination can never be traced, except that they ultimately go into the gulf of Mexico, unless previously to reaching the ocean they are deposited on either bank or on some island. This is in accordance with the theory of the decision that the land itself which is torn away must be susceptible of location and identification. but it is well settled that the general doctrine does apply to the river, though of course it must be used with reference to the peculiar characteristics of the stream. Nebraska v. Iowa, The argument for the limitation of the avulsion doctrine was made in favor of the abolition of the law of accretion from the valley of the Missouri river in the cases of Missouri v. Nebraska and Nebraska v. Iowa, supra. The court held, however, that, notwithstanding the greater rapidity of changes here than elsewhere, the fundamental principles of the law were not affected." The Great Circle At Newcastle 7

8 The controversy divides itself into two branches, distinct from each other in respect of facts and law. The first branch has to do with the title to the bed or subaqueous soil of the Delaware river within a circle of twelve miles about the town of New Castle. Delaware claims to be the owner of the entire bed of the river within the limits of this circle up to low water mark on the east or New Jersey side. New Jersey claims to be the owner up to the middle of the channel. Delaware traces her title to the riverbed within the circle through deeds going back two and a half centuries and more. On August 24, 1682, the Duke of York delivered to William Penn a deed of feoffment for the twelve-mile circle whereby he conveyed to the feoffee The second branch of the controversy has to do with the boundary line between the two states in the river below the circle and in the bay below the river. In that territory, as in the river above, New Jersey bounds her title by the thalweg. Delaware makes the division at the geographical center, an irregular line midway between the banks or shores. "ALL THAT the Towne of Newcastle otherwise called Delaware and All that Tract of Land lying within the Compass or Circle of Twelve Miles about the same scituate lying and being upon the River Delaware in America And all Islands in the same River Delaware and the said River and Soyle thereof lying North of the Southermost part of the said Circle of Twelve Miles about the said Towne." The special master appointed by this Court in January, 1930 (280 U.S. 529), has now filed his report. As to the boundary within the circle, his report is in favor of Delaware. To that part of the report exceptions have been filed by New Jersey. As to the boundary in the bay and in the river below the circle, his report is in favor of New Jersey. To that part exceptions have been filed by Delaware. Copyright 2016, Kristopher M. Kline, 2Point, Inc. On October 28, 1682, there was formal livery of seisin of the lands and waters within the twelve-mile circle. John Moll and Ephriam Herman, attorneys appointed in the deed of feoffment, gave possession and seisin by the delivery of turf and twig and water and Soyle of the River of Delaware.... We did deliver allso unto him one turf with a twigg upon it a porringer with River water and Soyle in part of all what was specified in the sd Indentures or deeds." 8

9 Letters patent from Charles II, dated May 12, 1664, had granted to the Duke full title to and government of a large territory in America, embracing much of New England and, in particular, "all the land from the west side of Connecticut River to the east side of Delaware Bay," not including, however, lands or waters to the west. The deed of feoffment had in it a covenant for further assurance at any time within seven years. At the instance of Penn and with little delay, the feoffor took steps to carry out this covenant, and thus rectify his title. On March 22, 1682/3, letters patent under the Great Seal of England were issued to the Duke of York for the identical lands and waters described in the deed of feoffment from York to William Penn. By force of this grant, there passed to the Duke of York a title to the land within the circle which inured by estoppel to the grantee under the feoffment. True, the Duke had gone into possession of lands westward of the grant, including land within the circle, and, through his delegates and deputies, was exercising powers of government. His acts in that behalf were the outcome of conflicts with the Dutch. What is now the state of Delaware had been subject to the government of the Dutch until 1664, when, with the victory of the English arms, it became an English colony. Copyright 2016, Kristopher M. Kline, 2Point, Inc. The applicable principle in such circumstances is among the rudiments of the law of property. The covenant generating the estoppel is commonly one of warranty or seisin. From that time until August 24, 1682, the date of the deed of feoffment, Delaware was governed (with the exception of a brief period from July, 1763, to February 9, 1764) as a dependency of the Government and Colony of New York through governors commissioned by the Duke of York and Albany. Upon the delivery of the deed to Penn, the Duke was the de facto overlord of the land within the circle, though title at that time was still vested in the Crown. There exists for our enlightenment the opinion of the chancellor in an historic litigation where the relation between the feoffment of August, 1682, and the later patent from the Crown was the very point at issue. A dispute had arisen between Lord Baltimore and Penn as to the title to part of the Delaware territory. On May 10, 1732, after Penn was in his grave, there was an agreement between his sons and Baltimore for the settlement of the boundaries between Pennsylvania, Delaware, and Maryland. Copyright 2016, Kristopher M. Kline, 2Point, Inc. 9

10 The Duke of York had become King under the name of James II on February 6, 1685, and George II sat upon the throne when the cause in chancery was heard. The Lord Chancellor, Hardwicke, gave judgment for the Penns. Penn v. Lord Baltimore, In his opinion, he holds that the effect of the letters patent is to make the deed of feoffment good either by force of an estoppel or by converting the feoffor into a trustee for the feoffee. The objection is urged upon him that an estoppel will not prevail against the Crown. The chancellor makes it plain that he is not favorably impressed. The Declaration of Independence had made Delaware a state with boundaries fixed as of that time. Nothing that was done by her legislature thereafter has had the effect of cutting down her territorial limits, however much it may have affected the private ownership of the Penns and their successors. Another statute (February 7, 1794) recites "the claims of the late and former pretended proprietaries of this state, to the soil and lands contained within the same, are not founded either in law or in equity." The Duke of York had become King under the name of James II on February 6, 1685, and George II sat upon the throne when the cause in chancery was heard. The Lord Chancellor, Hardwicke, gave judgment for the Penns. Penn v. Lord Baltimore, In his opinion, he holds that the effect of the letters patent is to make the deed of feoffment good either by force of an estoppel or by converting the feoffor into a trustee for the feoffee. The objection is urged upon him that an estoppel will not prevail against the Crown. The chancellor makes it plain that he is not favorably impressed. The colony of Delaware, as defined by this patent, was the one that declared its independence in 1776 and that succeeded in 1783 to any fragment of ownership abiding in the Crown. In resuming the title to uncultivated lands, its people had no thought of modifying the ancient boundaries, of relinquishing a foot of soil above the waters or below. The later history of the controversy between the states makes this abundantly clear, We see no adequate reason for rejecting his conclusion. [KK note: conclusion of Special Master] In the meantime, Penn had proceeded to organize a government for the Delaware territory. There were, it is true, intermittent challenges both of the proprietary interest of Penn and his successors and of their governmental powers. In 1692, he was removed from the Government of Pennsylvania, including the New Castle country, and his place given to a successor. But he was soon restored to power, In August, 1694, there was an Order in Council by which he was reestablished in his former office. Assuming the existence of the patent, New Jersey makes the claim that, in its application to the riverbed, it is void upon its face in that the Crown was without power to grant away the soil beneath navigable waters. The objection will not hold. Never has it been doubted that the grant will be upheld where the soil has been conveyed as an incident to the grant or delegation of powers strictly governmental. Martin v. Waddell's Lessee, 10

11 The question remains whether some other and better chain can be brought forward by New Jersey. Unless this can be done, Delaware must prevail. But, down to the Peace of 1783 at the end of the Revolution, New Jersey has no chain to offer. Up to that time, if not afterwards, her reliance is less upon the strength of her own title than on the weakness of her adversary's. The supposed defects have already been reviewed in this opinion, and have been found to be unreal. "at no time has the Delaware ever abandoned its claim, dominion, or jurisdiction over the Delaware River within said twelve-mile circle, nor has it at any time acquiesced in the claim of the State of New Jersey, thereto, The truth, indeed, is that, almost from the beginning of statehood, Delaware and New Jersey have been engaged in a dispute as to the boundary between them. There is no room in such circumstances for the application of the principle that long acquiescence may establish a boundary otherwise uncertain. Acquiescence is not compatible with a century of conflict. We uphold the title of Delaware to the land within the circle. There is still to be considered whether events during the years of statehood have worked a change of ownership. New Jersey argues that they have, though not even during those years does she build her claim of title upon instruments of record. Her claim is rather this -- that, through the exercise of dominion by riparian proprietors and by the officers of government, title to the subaqueous soil up to the centre of the channel has been developed by prescription. The special master held otherwise, and we are in accord with his conclusion. Second. The boundary below the circle in the lower river and the bay. Below the twelve-mile circle there is a stretch of water about five miles long, not different in its physical characteristics from the river above, and below this is another stretch of water forty-five miles long where the river broadens into a bay. The acts of dominion by riparian proprietors are connected with the building of wharves and piers that project into the stream. The structures were built and maintained without protest on the part of Delaware, and no doubt with her approval. There is nothing in their presence to indicate an abandonment by the Sovereign of title to the soil. By the law of waters of many of our states, a law which in that respect has departed from the common law of England, riparian proprietors have very commonly enjoyed the privilege of gaining access to a stream by building wharves and piers, and this though the title to the foreshore or the bed may have been vested in the state. The title to the soil of the lower river and the bay is unaffected by any grant to the Duke of York or others. The letters patent to James do not affect the ownership of the bed below the circle. Up to the time when New Jersey and Delaware became independent states, the title to the soil under the waters below the circle was still in the Crown of England. When independence was achieved, the precepts to be obeyed in the division of the waters were those of international law. 11

12 International law today divides the river boundaries between states by the middle of the main channel, when there is one, and not by the geographical center, halfway between the banks. Iowa v. Illinois, 147 U. S. 1, 147 U. S. It applies the same doctrine, now known as the doctrine of the "thalweg," to estuaries and bays in which the dominant sailing channel can be followed to the sea. The "thalweg," or downway, is the track taken by boats in their course down the stream, which is that of the strongest current. The underlying rationale of the doctrine of the thalweg is one of equality and justice. "A river, in the words of Holmes, J. (New Jersey v. New York, 283 U. S. 336, 283 U. S. 342), is more than an amenity; it is a treasure." If the dividing line were to be placed in the centre of the stream, rather than in the centre of the channel, the whole track of navigation might be thrown within the territory of one state to the exclusion of the other. the same test will be applied in the absence of usage or convention pointing to another. Iowa v. Illinois, Copyright 2016, Kristopher M. Kline, 2Point, Inc. Delaware makes no denial that this is the decisive test whenever the physical conditions define the track of navigation. Her position comes to this - that the bay is equally navigable in all directions, or, at all events, was so navigable in 1783, and that, in the absence of a track of navigation, the geographical center becomes the boundary not of choice, but of necessity. The commentators tell us of times when the doctrine of the thalweg was still unknown or undeveloped. Anciently, we are informed, there was a principle of codominion by which boundary streams to their entire width were held in common ownership by the proprietors on either side. There are statements by the commentators that the term thalweg is to be traced to the Congress of Rastadt in 1797 and the Treaty of Luneville in "as early as Fisher's Chart of Delaware Bay (1756), there has been a well defined channel of navigation up and down the Bay and River" in which the current of water attains its maximum velocity; that "Delaware River and Bay, on account of shoals, are not equally navigable in all directions, but the main ship channel must be adhered to for safety in navigation; "The record shows the existence of a well defined deep water sailing channel in Delaware River and Bay constituting a necessary truck of navigation, and the boundary between the states of Delaware and New Jersey in said bay is the middle of said channel." Thus, in the Treaty of October 27, 1795, between the United States and Spain (Article IV), it is "agreed that the western boundary of the United States which separates them from the Spanish colony of Louisiana is in the middle of the channel or bed of the River Mississippi. There are other treaties of the same period in which the boundary is described as the middle of the river without further definition, yet this Court has held that the phrase was intended to be equivalent to the middle of the channel. 12

13 The argument is, however, that the geographical center is to be made the boundary in the river as a matter of convenience, since otherwise there will be need for a sharp and sudden turn when the river meets the bay. Inconvenient such a boundary would unquestionably be, but the inconvenience is a reason for following the thalweg consistently through the river and the bay alike instead of abandoning it along a course where it can be followed without trouble. Just an Everyday Boundary Dispute If the boundary be taken to be the geographical center, the result will be a crooked line, conforming to the indentations and windings of the coast, but without relation to the needs of shipping. If the boundary be taken to be the thalweg, it will follow the course furrowed by the vessels of the world. This is an original suit in equity brought by the Commonwealth of Massachusetts against the State of New York, the City of Rochester in New York, and certain corporations and individuals, to quiet title to land located in the City of Rochester, and to enjoin the City from taking it by eminent domain, or in the alternative, to have the amount of compensation for the taking determined by this Court. The land in dispute is a narrow strip of about twenty-five acres fronting upon Lake Ontario within the city limits of Rochester. Within the twelve-mile circle, the river and the subaqueous soil thereof up to low water mark on the easterly or New Jersey side will be adjudged to belong to the state of Delaware, subject to the Compact of Below the twelve-mile circle, the true boundary between the complainant and the defendant will be adjudged to be the middle of the main ship channel in Delaware river and bay. The costs of the suit will be equally divided Copyright 2016, Kristopher M. Kline, 2Point, Inc. By the Treaty of Hartford, entered into between New York and Massachusetts, December 16, 1786, land within the territorial limits of New York was granted to Massachusetts in private ownership. The title to the land in controversy depends upon the meaning and effect of this treaty, and upon the construction of a subsequent conveyance by Massachusetts of a part of the land thus acquired. 13

14 Before 1786, Massachusetts and New York claimed, under conflicting royal grants, both sovereignty and title of a large area of what is now western New York. The controversy was settled by the Treaty of Hartford by which Massachusetts gave up all its claim to sovereignty over the territory, and its claim to private ownership in part of it thence on the eastern side of the said Streight by a Line always one mile distant from and parallel to the said Streight to Lake Erie thence due west to the boundary Line between the United States and the king of Great Britain thence along the said boundary Line until it meets with the Line of Cession from the State of New York to the United States thence along the said Line of Cession to the northwest corner of the State of Pennsylvania and thence East along the northern boundary Line of the State of Pennsylvania to the said place of beginning." New York ceded to Massachusetts, within the following Limits and Bounds that is to say, BEGINNING in the north boundary Line of the State of Pennsylvania in the parallel of forty-two degrees of north Latitude at a point distant eighty-two miles west from the northeast Corner of the State of Pennsylvania on Delaware River as the said boundary Line hath been run and marked by the Commissioners appointed by the States of Pennsylvania and New York respectively and from the said By act of the Massachusetts legislature, approved April 1, 1788, it was provided that "this Commonwealth doth hereby agree, to grant, sell & convey" to Oliver Phelps and Nathaniel Gorham for a purchase price stated in the Act all the Right, Title & Demand, which the said Commonwealth has in & to the said Western Territory" ceded to it by the Treaty of Hartford. running on a due meridian north to the boundary Line between the United States of America and the king of Great Britain thence westerly and southerly along the said boundary Line to a meridian which will pass one mile due East from the northern Termination of the Streight or waters between Lake Ontario and Lake Erie thence South along the said Meridian to the South Shore of Lake Ontario begins at a point "in the north boundary line of the State of Pennsylvania in the parallel of forty-two degrees north latitude at a point distant eighty-two miles west The description proceeds by various metes and bounds to a point on the Genesee River from which, so far as now material, it reads as follows: "... thence running in a direction due west twelve miles, thence running in a direction northwardly, so as to be twelve miles distant from the most westward bends of said Genesee River to the shore of the Ontario Lake thence eastwardly along the shores of said Lake to a meridian which will pass through the first point or place of beginning...." 14

15 By legislative act, the Commonwealth of Massachusetts granted to Phelps and Gorham the land which had been conveyed by the deed or treaty with the Five Tribes, By treaty between the Six Nations and the United States, executed November 11, 1794, known as the Pickering Treaty, 7 Stat. 44, the Indians formally disclaimed any rights in the land lying east of the west line of the Phelps and Gorham tract. The several corporate and individual defendants who are in possession of or claim an interest in land now in controversy, derive their title, through mesne conveyances, The first question which must receive our consideration is whether Massachusetts acquired any title to the bed of Lake Ontario by the Treaty of Hartford. That treaty contained three principal clauses of cession. One granted to New York "all the claim right and Title which the Commonwealth of Massachusetts hath to the Government Sovereignty and Jurisdiction" The second granted to Massachusetts "the Right of preemption of the Soil from the native Indians By the third, with which we are not now concerned, Massachusetts gave up and ceded to New York its claim to private ownership in the remainder of the land in controversy. It is established that, since the grant to Phelps and Gorham, there has been a shifting of the shore line of Lake Ontario, and that the land now in dispute, which, certainly in 1803 and probably at the time of the Phelps and Gorham grant, was under water north of the shore line of Lake Ontario, is now above water and south of the high water mark of the lake. Whether the change in the shore line and in the physical condition of the land in question was due wholly to accretion or partly to accretion and partly to filling, does not clearly appear, and in the view we take of the case, is not material. The English possessions in America were claimed by right of discovery. The rights of property and dominion in the lands discovered by those acting under royal authority were held to vest in the Crown As a result of the Revolution, the people of each State became sovereign and in that capacity acquired the rights of the Crown in the public domain ( Martin v. Waddell, 16 Peters 367, 410), The effect of the grant made to Massachusetts in the treaty, depends upon the interpretation of the restrictive language excepting from the operation of the grant the "Right and Title of Government Sovereignty and Jurisdiction" The argument of the Commonwealth of Massachusetts is that the legal effect of the Hartford treaty was to release and convey to Massachusetts, within the limits of the description in the grant, the bed of Lake Ontario as it then existed, that by the treaty it acquired title to the land now in dispute; that its grant to Phelps and Gorham, bounding the land conveyed by a line running "to the Shore of the Ontario Lake; thence eastwardly along the Shores of the said Lake," carried only to high water mark, and that title to all the land below high water mark as it then existed remained in Massachusetts. The question is not the vexed one argued at the bar, whether there was power in New York to grant the soil beneath its navigable waters in private ownership. Compare Martin v. Waddell, supra, p We need not consider here whether, in such circumstances, there is a limitation on the power of a sovereign state to grant its public domain, 15

16 In ascertaining that meaning, not only must regard be had to the technical significance of the words used in the grants, but they must be interpreted "with a view to public convenience, and the avoidance of controversy"; and "the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals." Marshall, C. J., in Handly's Lessee v. Anthony, 5 Wheat. 374, The fact that the northern limit of the grant to Massachusetts was described as the international boundary, and not the edge of the lake, is not inconsistent with our view of the general purpose of the grant with respect to the lands under water. A map in evidence antedating the treaty shows numerous islands in Lake Ontario within the described area. It was unquestionably the purpose to grant the right of preemption of all the islands, and, in order to include them, it was necessary to extend the description to the international boundary line. The applicable principles of English law then well understood, the object of the grant, contemporaneous construction of it, and usage under it for more than a century, all are to be given consideration and weight. Martin v. Waddell, supra. It is a principle derived from the English common law and firmly established in this country that the title to the soil under navigable waters is in the sovereign, except so far as private rights in it have been acquired by express grant or prescription. Shively v. Bowlby, 152 U.S. 1 The dominion over navigable waters, and property in the soil under them, are so identified with the exercise of the sovereign powers of government that a presumption against their separation from sovereignty must be indulged, in construing all grants by the sovereign, of lands to be held in private ownership. The purpose was, while reserving and securing to New York its right as a sovereign State in the granted territory, to confer upon Massachusetts the right of preemption of the soil from the Indians, and to enable it to make sale of the lands to settlers by conferring on it the power to grant this right of pre-emption. It does not appear that the Indians ever had or claimed any rights to the soil under the lake Nor is there anything to indicate that either party to the treaty contemplated grants of the soil under the water, or intended any such limitation upon the sovereign rights of New York over navigable waters within its territory, Such grants are peculiarly subject to the rule, applicable generally, that all grants by or to a sovereign government, as distinguished from private grants, must be construed so as to diminish the public rights of the sovereign only so far as is made necessary by an unavoidable construction. It follows that, wherever there is a grant by a State... where, in a grant of land to be held in private ownership by one State within the limits of another, there is a reservation to the grantor State of these sovereign rights, the grant or reservation carries with it, as an incident, title to lands under navigable waters. 16

17 The precise question now under consideration was before this court in Martin v. Waddell, supra. It compels the conclusion, which is supported by every consideration that could throw light upon the purpose and intent of the Treaty of Hartford, that the proper construction of the technical language of the treaty (which both granted and reserved to New York the right and title of sovereignty and jurisdiction over the area described) gave to New York, as incident to its sovereignty, title to all lands under navigable waters. In order thus to restrict its operation, Massachusetts relies on the use of the words "to the Shore" and "along the Shores," instead of "to the lake" and "along the lake," which concededly would have carried to the water's edge; and it is argued that the same effect must be given to these words as when they are used in conveyances granting land bounded by the shore of tidal waters. In this connection, it should be observed that in the Treaty of Hartford the words "shore" and "lake" were used synonymously Copyright 2016, Kristopher M. Kline, 2Point, Inc. We pass now to the contention of Massachusetts that, even if it did not acquire title to the bed of the lake, it did acquire title to the shore of the lake by the Treaty of Hartford, and that it is entitled to the benefit of all accretion to the shore because it has never parted with its title. This contention depends upon the interpretation of the language of its grant to Phelps and Gorham, of lands bounded by a line described as extending "to the Shore of the Ontario Lake; thence eastwardly along the Shores of the said lake" The "seashore" is that well defined area lying between high water mark and the low water mark, of waters in which the tide daily ebbs and flows. The fact that by the English common law, and by the law of those States bounded by tidal waters, the public has rights in the seashore, and that grants extending only to the high water mark of such waters nevertheless give access to the sea, accounts for the rule, generally recognized and followed, that a grant whose boundaries extend to the "shore" or "along the shore" of the sea, carries only to high water mark. and it can be sustained only if we conclude that, notwithstanding the nature of the grant and the circumstances under which it was made, Massachusetts, after its execution, retained a narrow and undefined ribbon of land extending some forty miles along the lake front, north of the Phelps and Gorham grant, and separating the latter from the lake. There is no conceivable purpose for which it could be supposed that Massachusetts intended to retain such a proprietary interest in the shore as is now claimed, or to deny to its grantees and to settlers in the granted territory access to the great natural waterway upon its northern boundary. The application of that rule to conveyances of land bordering upon non-tidal waters is supported neither by reason nor by authority. The lack of clear definition, by natural land marks, of the shore of non-tidal waters, would make its application impracticable. It would deny to grantees all access to such waters except on the irregular and infrequent occasions of flood, since there are no public rights in the shores of non-tidal waters, and the abutting owner could not cross the shore to the water without trespass. 17

18 Such a result would contravene public policy and defeat the intention with which such conveyances are normally made. New York has consistently refused to apply the rule to non-tidal waters, holding that a conveyance "to the shore" or "along the shore" of such waters carries to the water's edge at low water, Child v. Starr, and the local rules for interpreting conveyances should be applied by this Court in the absence of an expression of a different purpose. Ellis Island Project If any further support were required for the conclusion which we reach, it is to be found in the practical construction by the two States of the Treaty of Hartford and of the grants made by Massachusetts immediately following it, and in long continued acquiescence by Massachusetts in that construction. There is no evidence of any official act, or any expression, of the general court or the legislature of Massachusetts, or of any official of the Commonwealth, which suggests that Massachusetts had reserved or retained any interest whatever in land under Lake Ontario or upon its shores within the boundaries of that grant. An 1834 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 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. Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary. Indiana v. Kentucky, 136 U.S. 479; Michigan v. Wisconsin, 270 U.S Even though the Treaty of Hartford provided "that no adverse possession of the said lands for any length of time shall be adjudged a disseisin of the Commonwealth of Massachusetts," it does not affect the interpretation by Massachusetts of her own deeds and acts, or her long continued acquiescence in that interpretation, as persuasive, if not conclusive, evidence 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 18

19 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 interstate boundary disputes, now extending into the fourth century since the conveyance of New Jersey received its seal. 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; N. J. Laws, pp , and jointly they sought the approval of Congress under the Compact Clause of the United States 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 New 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. 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 The Compact comprises eight articles, the first three of which directly concern us here. Article First sets the relevant stretch of the "boundary line" between New York and New Jersey as the middle of the Hudson River "except as hereinafter otherwise particularly mentioned." Article Second provides that "New York shall retain its present jurisdiction of and over Bedlow'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." 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, jurisdiction and sovereignty" west of the midpoint of the waters of the Hudson River and New York Bay. Copyright 2016, Kristopher M. Kline, 2Point, Inc. 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 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." 19

20 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 We noted that the term "jurisdiction" was used in a broader sense in Article Second (relating to the islands) than in Article Third (relating to water and submerged land west of the center line), the purpose of the latter being "to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of Article I. 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 original Island. In the end, the United States enlarged Ellis Island by roughly 24.5 acres, for a total area some nine times the original. 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. 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. the Secretary of the Interior decided in 1964 that the Government should stop trying to 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. 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 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, 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. 20

21 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. 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. 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. 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 land filling or purposefully causing accretion. The littoral owner's act of placing artificial fill is thus treated under the traditional common-law rule governing avulsive littoral changes, Nebraska v. Iowa,143 U.S. 359, 361 (1892) New York's contention is that Article Second also provides for its authority over filled land; New Jersey says it does not. 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; 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 On the assumption that Article Second or some other Compact provision fails to carry the day for New York, the State 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 Virginia v. Tennessee,148 U.S. 503 To begin with, the absence of any description of the Island in metes and bounds is highly dubious support for any inference beyond the obvious one, that in 1834 everybody knew what Ellis Island was. Nor can we draw any conclusion in New York's favor from the failure of the Compact to address the consequences of land filling, however common the practice may have been. 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." 21

22 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. 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 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 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. 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. 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." The evidence that has come through the door, however, is too slight to support any finding of prescription. 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. Thus, every reference to "Ellis Island" on a New York tax roll or a statute outlining the confines of a voting district was necessarily sound 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 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, a period that is not insufficient as a matter of general law. 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 New York, for example, has been in no position to establish towns, roads, or public buildings 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 22

23 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. 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. 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 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.' "[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 presented evidence of New York State and New York City statutes and ordinances that included the Island in voting districts 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 the related maps of the First and Second Assembly districts continued to show the missing Oyster Island as late as 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. 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 define the shoreline. We explained this in Handly's Lessee: 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." 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) 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. The United States was in no sense New York's proxy 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. Massachusetts, 23

24 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. Invoking this Court's original jurisdiction, the Commonwealth of Virginia seeks a declaration that it has a right to withdraw water from the Potomac River and to construct improvements appurtenant to the Virginia shore free from regulation by the State of Maryland. the Potomac River (River) flows nearly 400 miles before emptying into Chesapeake Bay. For the lower part of its course, it forms the boundary between Maryland and the District of Columbia on the north, and West Virginia and Virginia on the south. 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. 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. Control of the River has been disputed for nearly 400 years. In the 17th century, both Maryland and Virginia laid claim to the River pursuant to conflicting royal charters issued by different British monarchs. Virginia traced her claim primarily to the 1609 charter issued by King James I to the London Company, and to a 1688 patent for Virginia's Northern Neck, issued by King James II to Lord Thomas Culpeper. Both the 1609 charter and the 1688 patent included the entire Potomac River. Maryland v. Virginia Unusual River Boundary 24

25 Maryland and Virginia appointed commissioners, who, at the invitation of George Washington, met at Mount Vernon in March The Mount Vernon conference produced a binding compact (1785 Compact) between the States, which was subsequently ratified by the Maryland and Virginia Legislatures. The 1785 Compact's 13 articles provided, inter alia, that the River "shall be considered as a common highway, for the purpose of navigation and commerce to the citizens of Virginia and Maryland" Maryland relied on the charter of 1632 from King Charles I to Lord Baltimore, which also included the Potomac River, although the precise scope of the grant remained in dispute. In her Constitution of 1776, Virginia ceded ownership of the River to Maryland to the extent the River was included in Maryland's 1632 charter. Of particular relevance to this case, Article Seventh provided: "The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river." Although the 1785 Compact resolved many important navigational and jurisdictional issues, it did not determine the boundary line between the States, an issue that was "left open to long continued disputes." Importantly for our purposes, Virginia specifically excepted from her cession "the free navigation and use of the rivers Potowmack and Pocomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." In October of that same year, Maryland passed a resolution at a convention of her constitutional delegates that rejected the reservation in Virginia's Constitution. The unanimous convention asserted Maryland's "sole and exclusive jurisdiction" over the River. In 1874, Virginia and Maryland submitted the boundary dispute to binding arbitration before a panel of "eminent lawyers" composed of Jeremiah S. Black, James B. Beck, and Charles J. Jenkins. Maryland v. West Virginia, 217 U.S. 577, 579, 54 L. Ed. 888, 30 S. Ct. 630 (1910). On January 16, 1877, the arbitrators issued their award (hereinafter Black-Jenkins Award or Award), placing the boundary at the low-water mark on the Virginia shore of the Potomac. Copyright 2016, Kristopher M. Kline, 2Point, Inc. 25

26 Although Maryland was thus granted ownership of the entire bed of the River, Article Fourth of the Award further provided: "Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of lowwater mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." In 1996, the Fairfax County Water Authority (FCWA) sought permits from Maryland for construction of a water intake structure extending 725 feet from the Virginia shore above the tidal reach of the Potomac River. The structure was designed to improve water quality for Fairfax County residents. Several Maryland officials opposed Virginia's construction proposal, arguing that it would harm Maryland's interests by facilitating urban sprawl in Virginia. In late 1997, the Maryland Department of the Environment (MDE) refused to issue the permit, The Black-Jenkins Award was ratified by the Legislatures of Maryland and Virginia, 1878 Md. Laws ch. 274; 1878 Va. Acts ch. 246, and approved by the United States Congress In 1933, Maryland established a permitting system for water withdrawal and waterway construction taking place within Maryland territory. This case marks the second time Virginia sought leave to file an original action against Maryland concerning Potomac River rights. See Virginia v. Maryland, 355 U.S. 269, 2 L. Ed. 2d 257, 78 S. Ct. 327 (1957) (per curiam). In the earlier fray, the Special Master persuaded the States to settle their dispute. They entered into a new compact, which superseded the 1785 Compact but specifically preserved the rights delineated in Article Seventh. Copyright 2016, Kristopher M. Kline, 2Point, Inc. In 1956, Fairfax County became the first Virginia municipal corporation to apply for a water withdrawal permit, seeking leave to withdraw up to 15 million gallons of water per day. Maryland granted that permit in Between 1957 and 1996, Maryland issued, without objection, at least 29 water withdrawal permits to Virginia entities. Since 1968, it has likewise issued numerous waterway construction permits to Virginia entities. Maryland did not dispute that Virginia had rights to withdraw water and construct improvements under the 1785 Compact and the Black-Jenkins Award. Rather, Maryland asserted that, as sovereign over the River to the low-water mark, it was entitled to regulate Virginia's exercise of these rights. Maryland further argued that even if the 1785 Compact and the Award granted Virginia unrestricted rights of waterway construction and water withdrawal, Virginia lost those rights by acquiescing in Maryland's regulation of activities on the Potomac. 26

27 The Special Master recommended that we grant the relief sought by Virginia. Interpreting the 1785 Compact and the Black-Jenkins Award, he concluded that these two documents not only gave citizens of Virginia the right to construct improvements from their riparian property into the River, but gave the Commonwealth of Virginia the right to use the River beyond the low-water mark as necessary to the full enjoyment of her riparian rights. We next consider whether Virginia has lost her sovereign riparian rights by acquiescing in Maryland's regulation of her water withdrawal and waterway construction actvities. We recently considered in depth the "affirmative defense of prescription and acquiescence" in New Jersey, 523 U.S., at 807, 140 L. Ed. 2d 993, 118 S. Ct To succeed in her defense, Maryland must "'show by a preponderance of the evidence... a long and continuous... assertion of sovereignty over'" Virginia's riparian activities, as well as Virginia's acquiescence in her prescriptive acts. The Special Master rejected Maryland's claimed authority to regulate Virginia's exercise of her rights, finding no support for that proposition in either the 1785 Compact or the Award. Finally, the Special Master rejected Maryland's defense of acquiescence by Virginia. Maryland filed exceptions to the Report of the Special Master. We now overrule those exceptions. Although "we have never established a minimum period of prescription" necessary for one State to prevail over a coequal sovereign on a claim of prescription and acquiescence, New Jersey, supra, at 789, 140 L. Ed. 2d 993, 118 S. Ct. 1726, we have noted that the period must be "substantial," Maryland claims, and Virginia does not dispute, that it has taxed structures erected on such improvements (i.e., restaurants, etc.); issued licenses for activities occurring thereon (i.e., liquor, gambling, etc.); and exercised exclusive criminal jurisdiction over crimes We interpret a congressionally approved interstate compact "[j]ust as if [we] were addressing a federal statute." ("[C]ongressional consent 'transforms an interstate compact... into a law of the United States'" The arbitration proceedings, however, were convened to "ascertai[n] and fi[x] the boundary" between coequal sovereigns, not to adjudicate the property rights of private citizens. Accordingly, we conclude that the Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, Only once before have we deemed such a short period of time sufficient to prove prescription in a case involving our original jurisdiction. See Nebraska v. Wyoming, (41 years). We held, in the alternative, that "Wyoming's arguments are foreclosed by its postdecree acquiescence" for 41 years. Maryland that seeks to defeat those rights by showing Virginia's acquiescence. it is far from clear that such a short prescriptive period is sufficient as a matter of law. (noting that a prescriptive period of 64 years is "not insufficient as a matter of general law"). 27

28 To succeed on the acquiescence prong of her defense, Maryland must show that Virginia "failed to protest" her assertion of sovereign authority over waterway construction and water withdrawal. We hold that 181 of the WRDA and the Low Flow Allocation Agreement are conclusive evidence that, far from acquiescing in Maryland's regulation, Virginia explicitly asserted her sovereign riparian rights. we overrule Maryland's exceptions to the Report of the Special Master. We grant the relief sought by Virginia and enter the decree proposed by the Special Master. This map is so far from concluding, that it cannot be admitted in evidence to the prejudice of strangers to the transaction. But a uniform and long continued acquiescence, as well on the part of the parties making it as on those intrusted in repelling encroachments on the adjoining tracts, might have stamped it with a higher degree of verisimilitude. Acquiescence Between Sovereigns The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years. The plain and obvious mode to satisfy the terms of the grant, would be to give them the extent of two miles on each side of the Hoosick River, conformable to all its windings, if that be practicable. Several other modes have been suggested and analogies between this and other cases attempted, which appear either arbitrary in themselves, or too loose and uncertain to furnish a rule for decision. Boundaries of a similar description have, I believe, in many instances, either been settled by accommodation, or established by a length of possession and the acquiescence of all parties The doctrine of acquiescence is applied in instances when adjoining land owners occupy their respective properties up to a certain line and mutually recognize and treat that line as if it is the boundary that separates their properties. Acquiescence rests on the practical reality that oftentimes, the true boundary line location is uncertain and neighbors may themselves establish boundaries. To apply this doctrine: (1) adjoining landowners must treat a specific line as the boundary; and (2) the line must be so treated for a period of years, usually the period required for adverse possession. 28

29 The Ohio Supreme Court recognized the doctrine of acquiescence long ago: "[W]e hold the principle to be well settled that an agreement upon a division line between adjoining landowners, different from the true line, the true line being a certain, and not a disputed line, and acquiescence by all the parties in such agreed line, for a length of time that would bar a right of entry under the statute of limitations in relation to real estate, would operate to prevent a party purchasing from one of such owners, with notice of the agreed line, from setting up a claim to any line other than that agreed upon, No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time, and fall with the lives of individuals. 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. James the First, on the 3d of November, 1620, granted to the Council established at Plymouth the territory on the Atlantic lying between forty and forty-eight degrees of north latitude, extending westward to the sea. And on the 19th of March, 1628, the Council of Plymouth granted to Henry Roswell and others the territory of Massachusetts, which was confirmed by Charles the First, the 4th of March, This grant was limited to the territory "lying within the space of three English miles on the south part of Charles River, or of any or every part thereof; As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, (1973) ("The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." (quoting Michigan v. Wisconsin, (1926))); That Massachusetts more than two hundred years ago construed the charter as her counsel now construe it is clear, and the facts proved authorize the conclusion I am of opinion, that, in settling the above-mentioned boundary, the crown will not disturb the settlement by the two provinces so long ago as I apprehend his Majesty will confirm their agreement, which of itself is not binding on the crown, but neither province should be suffered to litigate such an amicable compromise of doubtful boundaries. Massachusetts v. New York, (1926) ("Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary."). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary. 29

30 California v. Nevada, (1980) (No relationship need exist "between the origins of a boundary and the legal consequences of acquiescence in that boundary.... Longstanding acquiescence by California and Nevada can give [the boundary lines] the force of law whether or not federal authorities had the power to draw them."). Copyright 2016, Kristopher M. Kline, 2Point, Inc. And the contention of Virginia is that the boundary line claimed by Tennessee does not follow this parallel of latitude but varies from it by running too far north, so as to unjustly include a strip of land about one hundred and thirteen miles in length and varying from two to eight miles in width, over which she asserts and unlawfully exercises sovereign jurisdiction. Virginia v. Tennessee Classic Acquiescence Commissioners were appointed by Virginia and North Carolina to carry this agreement into effect. They met at Currituck Inlet in March, The variation of the compass was then found to be three degrees one minute and two seconds west, nearly, and the latitude thirty-six degrees thirty-one minutes. The dividing line between the provinces struck Blackwater one hundred and seventy-six poles above the mouth of Nottaway. The variation of the compass at the mouth of Nottaway was two degrees thirty minutes. The line was afterward extended to Steep Rock Creek, 320 miles from the coast, The claim of Virginia is that by the charters of the English sovereigns, under which the colonies of Virginia and North Carolina were formed, the boundary line between them was intended and declared to be a line running due west from a point on the Atlantic Ocean on the parallel of latitude thirty-six degrees and thirty minutes north, and that the State of Tennessee, having been created out of the territory formerly constituting a part of North Carolina, the same boundary line continued between her and Virginia.. The line was marked with great care by the commissioners of the States, with five chops on the trees in the form of a diamond, at such intervals between them as they deemed sufficient to identify and trace the line. Not a whisper of fraud or misconduct is made by either side against the commissioners, for the conclusions they reached and the line they established. This act shall commence and be in force from and after the passing of a like law on the part of the State of Tennessee." And on the 3d of November, 1803, Tennessee passed the following ratifying act: 30

31 "Whereas, the commissioners appointed to settle and designate the true boundary between this State and the State of Virginia, in conformity to the act passed by the legislature of this State for the purpose, on the thirteenth day of November, one thousand eight hundred and one, have proceeded to the execution of said business, and made a report thereof in the words following, to wit": "And it is deemed proper and expedient that the said boundary line, so fixed and ascertained as aforesaid, should be established and confirmed on the part of this State -- Independently of any effect due to the compact as such, a boundary line between States or Provinces, as between private persons, which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary. [quoting Rhode Island v. Massachusetts] Tennessee responded to that invitation, and appointed commissioners to act with those from Virginia. The commissioners together re-run and re-marked the line as it was established in 1802 No complaint as to the correctness of the line run and established in 1802 was made by Virginia until within a recent period. Between nations, therefore, it becomes necessary to admit prescription founded on length of time as a valid and incontestable title." And Wheaton, in his International Law, says: "The writers on natural law have questioned how far that peculiar species of presumption, arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation; but the constant and approved practice of nations shows that by whatever name it be called, the uninterrupted possession of territory or other property for a certain length of time by one State excludes the claim of every other in the same manner [Virginia] asks that the compact entered into between her and the State of Tennessee, as set forth in the act of the general assembly of Virginia of January 22, 1803, and which became operative by similar action of the legislature of Tennessee on the 3d of November following, be declared null and void... the legislative declaration of Virginia in 1803 that the line marked by the joint commissioners of the two States was ratified as the true and real boundary between them, and the repeated reaffirmation of the same declaration in her laws since that date, notably in the Code of 1858, in the Code of 1860 and in the Code of 1887; notwithstanding that the State has in various modes attested to the correctness of the boundary -- by solemn affirmation in terms, by legislation, in the administration of its government, in the levy of taxes and the election of officers, and in its acquiescence for over eighty-five years 31

32 "it is a part of the general right of sovereignty belonging to independent nations to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations become conclusive upon all the subjects and citizens thereof, and bind their rights, and are to be treated to all intents and purposes, as the true and real boundary," adds: "This is a doctrine universally recognized in the law and practice of nations. It is a right equally belonging to the States of this Union Our judgment, therefore, is that the boundary line established by the States of Virginia and Tennessee by the compact of 1803 is the true boundary between them, and that on a proper application, based upon a showing that any marks for the identification of that line have been obliterated or have become indistinct, an order may be made, at any time during the present term, for the restoration of such marks without any change of the line. 32