of the case as presented by the whole record, and not "by a reference to the nominal parties to the record."

This the Circuit Court did, and from an inspection of the entire record, for the reasons stated in the opinion filed, the court held that, although the State of Nebraska was a nominal party plaintiff on the record, yet it had no real substantial legal interest in the controversy. The complaint alleged that the Nebraska State Railway Commission was charged with the duty to regulate proper and lawful intrastate rates upon the railroad lines in the State of Nebraska, and to enforce thereon all lawful intrastate rates and charges for the transportation of passengers and freight, and to prevent discrimination in such intrastate freight and passenger rates and charges; and alleged the duty of the Attorney General to bring all suits necessary for that purpose; the suit had for its object and purpose merely the securing of an injunction against the defendant company, to restrain that company from charging for the transportation of freight and passengers within the State of Nebraska more than the rates fixed by the state authority for that purpose, and from disobeying orders of said Nebraska State Railway Commission, and from concealing from said commission the true condition of its business, and from making any unlawful discrimination in issuing intrastate passes, mileage tickets and transportation within the State of Nebraska.

The question whether the State of Nebraska is the real party plaintiff must be determined from the consideration of the nature of the case as disclosed by the record. If the nature of the case is such that the State of Nebraska is the real party plaintiff, the Federal court will so decide for all purposes of jurisdiction, even though the State were not named as a party plaintiff. If the nature of the case is such that the State is not a real party plaintiff, the Federal court will so decide for the purposes of jurisdiction, even though the State is named nominally as a party plaintiff.

The question whether such a case as this is one in which

the State is the real party in interest and the real party plaintiff was determined by this court in Missouri, Kansas & Texas Railway Company v. Missouri R. R. & Warehouse Commissioners, 183 U. S. 53, where the only question presented was whether in a suit brought to enjoin a railroad company from charging greater rates within the State of Missouri than those fixed by state authority, the State of Missouri was the real party plaintiff. The State was not joined as a party plaintiff, but the question had to be determined, not by a view of the nominal parties to the record, but from the consideration of the nature of the case as shown by the whole record. The defendant company presented to the state court a petition for removal, which was denied. The Supreme Court of the State held that it was proper to go behind the face of the record and inquire who was the real party plaintiff; and, after making such examination, decided that the State was the real party plaintiff, and that the Federal court had no jurisdiction on the removal. The case was brought to this court for a review of the decision of the Supreme Court of Missouri, and this court recognizing the rule that a mere inspection of the parties named as the plaintiffs was not conclusive, examined the record and the nature of the case, and in an opinion rendered by Mr. Justice Brewer held that the nature of the case was such that the State of Missouri was not a real party in interest and not a real party plaintiff.

The court analyzed the nature of the proceeding, showed that there was nothing in such an action which affected the State as such, and that the relief sought did not inure to the State alone, and that a decree in favor of the plaintiff would not effectively operate in favor of the State.

The Circuit Court might clearly have been correct in its decision that the present case was one in which the State of Nebraska was not the real party plaintiff, but that decision could not be reviewed by mandamus.

The Circuit Court was called upon on this record to decide whether the State of Nebraska had any real or legal interest

in the controversy alleged to have been wholly between citizens of different States; and it was a decision which the court had a right to make, involving no abuse of judicial discretion. A premature review cannot be obtained by a writ of mandamus. Without expressing any opinion as to whether the State was a necessary party to the relief asked, which involved the removability of the case, this court bases its judgment on the mandamus entirely upon the ground that, as the Circuit Court had jurisdiction to pass upon the question of the removability of the case, and as its order overruling the motion to remand was subject to be reviewed by a higher court after the case had been disposed of by final judgment, the remedy was by appeal and not by mandamus.

Rule discharged; petition dismissed.

UNITED STATES v. CHANDLER-DUNBAR WATER POWER COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 599. Argued April 6, 7, 8, 1908.- Decided April 20, 1908.

Statutes of limitations with regard to land affect the right even if in terms only directed against the remedy. The act of March 3, 1891, c. 561, § 8, 26 Stat. 1099, providing that suits to vacate and annul patents theretofore issued shall only be brought within five years after the passage of the act, applies to a void patent, and where suit has not been brought within the prescribed period a patent of public lands, whether reserved or not, must be held good and to have the same effect as though valid in the first place.

On the admission of Michigan to the Union the bed of the Sault Ste. Marie, whether strait or river, passed to the State, and small unsurveyed islands therein became subject to the law of the State.

By the law of Michigan a grant of land bounded by a stream whether navigable in fact or not, carries with it the bed of the stream to the center of the thread thereof, and under this rule the patentee of government

land bordering on the Sault Ste. Marie, takes to the center line, including small unsurveyed islands between the main land and the center line; nor are the rights of riparian owners to the center affected by the fact that the stream is a boundary.

152 Fed. Rep. 25 affirmed.

THE facts are stated in the opinion.

The Attorney General, The Solicitor General and Mr. Duane E. Fox, special assistant to the Attorney General, for the United States.1

1 The brief, on behalf of the United States, of over 280 pages, presented the case in the following manner as appears by the index of the brief:

Statement of the case; manner in which the questions are raised; the questions involved; specifications of errors.

Argument, I. The law of the waters; A. Locus of the islands; B. The status of the waters established by treaties; (1) The treaties of peace (Paris); (2) The treaty of Ghent; (a) Boundary established under Article VI; (b) Boundary established under Article VII; (3) The Treaty of Washington (WebsterAshburton treaty); (4) Other treaty provisions; C. The status of the waters established by the law of nations; D. The law of riparian and littoral ownership; (1) Public and private waters; (2) The Great Lakes; (3) The connecting waters between the Great Lakes; (4) Legislative recognition by the State of Michigan of the public character of the connecting waters between the Great Lakes; (5) Michigan cases distinguished; (6) State decisions-how far controlling; (7) The distinction between inland waters of a State and international waters; (8) The question a political one; E. Former construction by the Government.

II. Title to Islands 1 and 2 in the United States.

III. The islands and adjacent shore land reserved for public uses; A. Historical statement and authorities; B. Effect of order of December 9, 1852, releasing portion of lands previously reserved; (1) The reservation of 1822; (2) The general temporary reservation of April 3, 1847; (3) The specific reservation of September 2, 1847; (4) The specific and final reservation under the act of 1850; (5) The Indian reserve of an easement; C. Further contemporaneous construction.

IV. Land in Chandler patent never surveyed.

V. Said land not subject to location with Porterfield scrip; A. Lack of legal survey; B. No price established for said land; C. Said land otherwise appropriated at the time of such location; (1) Effect of the military reservation; (2) The land within the limits of an incorporated town.

VI. The interest of the United States in this suit; A. International obligations of the United States; B. The locus needed for works in aid of commerce; C. Refusal by Circuit Court to consider the validity of appellee's alleged title to adjacent shore; D. Employment of special counsel.

Mr. Arch B. Eldridge, Mr. Moses Hooper and Mr. John H. Goff for appellee.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by the United States to remove a cloud from its alleged title to two islands, numbered One and Two, in the Sault Ste. Marie, between Lake Huron and Lake Superior. The islands are in the rapids of the river or strait, on the American side of the Canada boundary line, and near to a strip of shore lying between the rapids and the United States ship canal referred to in United States v. Michigan, 190 U. S. 379. The defendant claims this strip and the islands under a patent from the United States, dated December 15, 1883, describing the land as bounded by the river St. Mary on the east, north and west. The United States says that the patent was void because the land had been reserved for public purposes, and that even if it was valid the islands did not pass. The defendant replies that the land was not reserved, and also sets up the statute of limitations. Act of March 3, 1891, c. 561, § 8. 26 Stat. 1099. The Circuit Court dismissed the bill, and its decree was affirmed by the Circuit Court of Appeals 152 Fed. Rep. 25.

There is force in the contention of the United States that the land was reserved and that it had not been surveyed, but we find it unnecessary to state or pass upon the arguments, because we are of opinion that now the patent must be as

VII. Statute of limitation not applicable.

VIII. Estoppel.

IX. Laches.

The appendix contained: A. Extracts from the report of the Commissioners under the treaty of Ghent; B. Diplomatic correspondence preceding the treaty of 1842; C. Extract from Article II of the treaty of 1842; D. Correspondence regarding the restoration of certain lands embraced in the temporary reservation of April 3, 1847; E. Commissions and correspondence showing the relation of special counsel to this case; F. Extract from letter of the Secretary of State to Lord Ashburton, dated July 27, 1842. There were also a number of maps.

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