Barr v. Rupp

Submitted October 31, 1935. Water Rights — Appropriation of Water on Lands Embraced in Northern Pacific Land Grant Prior to Survey — Appropriator not Trespasser. 1. Prior to survey of the lands embraced in the Northern Pacific land grant, the federal government retained a proprietary interest in them sufficient to enable Congress to permit a settler to go thereon for the purpose of making an appropriation of water and constructing ditches without becoming a trespasser; hence the decision of the trial court in a water right suit that one making such an appropriation after the date when the railroad company had filed its map of definite location of its road did so as a trespasser and acquired no right was error.