Cite as: 523 U. S. 767 (1998)
Opinion of the Court
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
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