New Jersey v. New York, 523 U.S. 767, 63 (1998)

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Cite as: 523 U. S. 767 (1998)

Scalia, J., dissenting

of the Main Building. The Master correctly stated that this result is "neither just nor fair to New York." 19

In my opinion it is not only the bizarre boundary that is unfair to New York. It is the failure to draw the common-sense inference that neither State could have contemplated such a bizarre division of the Island during the prescriptive period that lasted for over 60 years. During that entire period both States most certainly treated Ellis Island as part of a single State. Unquestionably, that State was New York.

Accordingly, I respectfully dissent.

Justice Scalia, with whom Justice Thomas joins, dissenting.

I agree with Justice Stevens that the available evidence supports the conclusion that "all interested parties shared the belief that the filled portions, as well as the original three acres, of Ellis Island were a part of the State of New York for over 60 years," ante, at 814 (dissenting opinion). And I agree that New Jersey's claim to the filled portions should be rejected for that reason.

I would not, however, rely upon prescription. Since that doctrine permits a claimant to oust the original, undoubted owner, it justifiably demands a very high burden of proof. Specifically, and in the context of the present case, it requires, as the Court points out, not merely acts of possession and jurisdiction on the part of New York, but also, on the part of New Jersey, "acquiescence in those acts of possession and jurisdiction," which in turn requires "knowledge that New York acted upon a claim to the added land, or evidence of such open, notorious, visible, and uninterrupted adverse acts that New Jersey's knowledge and acquiescence may be presumed." Ante, at 787.

I see no reason to climb that mountain in the present case. New Jersey is not the original, undoubted owner whose title

19 Final Report of Special Master 163.

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