Cite as: 540 U. S. 56 (2003)
Kennedy, J., dissenting
us . . . . Taking all together, we consider it established that Virginia has a proprietory right on the south shore to low water-mark, and, appurtenant thereto, has a privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership, and which shall not impede the free navigation or other common use of the river as a public highway." App. to Report of Special Master D-18 to D-19 (quoting Article Seventh of the Compact).
That Maryland's "assent" and "declaration" in the Compact prove Maryland's acquiescence in Black-Jenkins' prescription analysis illustrates the limits of the Award: The prescriptive rights it recognized stemmed from the Compact. Virginia's claims under Black-Jenkins rise as high as the Compact but no higher. The Commonwealth can do no more than assert those rights granted to landowners by Article Seventh.
The above analysis, of course, does not depend on the conclusion that Maryland's acquiescence was the sole basis for the Black-Jenkins Award, as the majority contends. See ante, at 75. A factor in any test can be a necessary, though not sufficient, element. Here, the arbitrators' express aim was to apply "[u]sucaption, prescription, or the acquisition of title founded on long possession, uninterrupted and undisputed," which they noted were intended to help sovereigns avoid the "bloody wars" that territorial disputes occasion. See App. to Report of Special Master D-17 to D-18. The inquiry into acquiescence (i. e., whether the territory was disputed) fits into that analytical framework as a necessary, though not sole, factor. The other factors, such as Virginia's long use, were also necessary, though not sole, factors. This explains why the arbitrators said Virginia's long use and Maryland's acquiescence were "Tak[en] all together." See id., at D-19. It also explains why the text of the Award—which after all is of greater significance than the arbitrator's attached opinion—distinguishes between Virginia's full dominion up to the
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