OPINION
FINLAYSON, P. J.
This is a suit to quiet title. Judgment passed for plaintiff. Defendant appeals, claiming that the court erred in sustaining a demurrer to his cross-complaint.
Plaintiff, who claims title as patentee under a patent from the United States, avers in her complaint that she is the owner of the land, a quarter section in Imperial county, that defendant unlawfully occupies it, withholding possession from her, and that defendant claims title adversely to her, but that his claim is without right. She prays for possession, that defendant’s claim be declared to be invalid, and that she recover damages. Defendant answered, denying that plaintiff is the owner or entitled to possession, and alleging that he himself is the owner and lawfully entitled to be in possession. In his answer defendant further avers facts intended to establish the invalidity of the patent. In addition to his answer, defendant filed a cross-complaint wherein he set out the nature of his claim and likewise facts intended to show that the patent to plaintiff was issued in consequence of erroneous rulings of the Land Department on questions of law, and praying that he be declared to be the equitable owner, that it be adjudged that plaintiff holds the legal title in trust for him, and that she be directed to convey to him the legal title acquired by her from the United States as patentee. To this cross-complaint plaintiff interposed a general demurrer. The demurrer was sustained. Thereupon a trial was had on the issues tendered by the complaint. Plaintiff adduced evidence in support of her allegations of title and damages. Defendant introduced evidence on the issue of damages only, expressly declining to introduce evidence upon any other issue raised by his answer. Thereupon the court found the fact of title to be as alleged in plaintiff’s complaint, and accordingly adjudged her to be the owner of the land and entitled to possession, quieting her title against all adverse claims of defendant.
The question presented is whether the facts alleged in the cross-complaint entitle defendant to a decree declaring plaintiff to be a trustee of the land for his benefit, and adjudging that whatever title she may have received as patentee belongs to defendant, and should be conveyed to him. Defendant, by his cross-complaint, seeks to bring himself within the well-established rule that where, by reason of a mistaken view of the law, the Land Department has improperly issued a patent to a person not entitled thereto, the patentee, in a court of equity, may be decreed to hold the legal title in trust for the person who is entitled to the land.
The case alleged in the cross-complaint is substantially as follows: On April 2, 1909, the Secretary of the Interior, pursuant to authority vested in him by the act of Congress of June 17, 1902 (32 Stats. at L. p. 388 [U. S. Comp. St. § § 4700-4708]), commonly known as the Reclamation Act, withdrew from entry over 100,000 acres in Imperial county. This withdrawal order was made in connection with the Yuma irrigation project, and included the land in controversy here.
The withdrawal was under the first form provided for by the Reclamation Act, section 3 of which provides for two classes of withdrawals:
(1) "The Secretary of the Interior shall * * * withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act." (2) He is authorized to withdraw from entry "any public lands believed to be susceptible of irrigation from said works."
Those withdrawn under the first form are lands that may be needed in the construction and maintenance of irrigation works; while those included in the second form are lands which may be irrigated from such works. A withdrawal under the first form--that is, a withdrawal of lands required for "irrigation works"--is intended as a permanent reservation for governmental use. It amounts to a legislative withdrawal, and is absolute. United States v. Hanson, 167 F. 881, 93 C. C. A. 371. Until its restoration to entry, land withdrawn under the first form of withdrawal is not subject to entry, and no right thereto can be initiated by any settler thereon. By its withdrawal the land is segregated from the public domain, and is excepted from the operation of the public land laws. No right of a private settler attaches to, or hangs over, the land so withdrawn, to interfere with such action as the government may thereafter see fit to take in respect to it. Woodcock’s Case, 38 Land Dec. 349; Pratt’s Case, 38 Land Dec. 146; Wolsey v. Chapman, 101 U.S. 755, 25 L.Ed. 915; Bullard v. Des Moines & Ft. D. R. R. Co., 122 U.S. 167, 7 S.Ct. 1149, 30 L.Ed. 1123; Spencer v. McDougal, 159 U.S. 63, 15 S.Ct. 1026, 40 L.Ed. 76; Scott v. Carew, 196 U.S. 100, 25 S.Ct. 193, 49 L.Ed. 403; Whitehill v. Victorio L. & C. Co., 18 N.M. 520, 139 P. 184, L. R. A. 1918D, 593.
On March 18, 1913, the Secretary of the Interior revoked his order of withdrawal, in so far as it affected the land in controversy here, and directed his order of revocation to be noted on the records in the General Land Office and in the local land office. We can see no reason why this order revoking the previously made order of withdrawal should not, when noted on the records in the General Land Office and in the local land office, as directed by the Secretary’s order, have the effect of an order of restoration, restoring the land again to settlement as public land subject to entry under the homestead laws of the United States. At any rate, the cross-complaint does not allege any fact tending to show that this order of revocation should not be operative as a completely effective restoration order when noted on the records of the local land office and the General Land Office, as directed by the Secretary of the Interior. We shall therefore treat it as a restoration order, restoring the land to entry, and effective for that purpose from the date of its record in the General Land Office and in the local land office. There is a regulation of the Land Department which provides that all orders for the restoration of lands that have been withdrawn from entry shall become effective "on the date they are received in the local land office, unless otherwise specified in the order." 40 Land Dec. p. 656. See, also, Pratt’s Case, supra.
It does not appear from the cross-complaint just when the restoration order was received in the local land office, or just when it became effective. Indeed, cross-complainant seems studiously to have avoided alleging any fact that will enable the court to say with certainty just when the land ceased to be withdrawn from entry and again became open to settlement and to entry as public land subject to disposal by the Land Department to qualified purchasers. There is, however, a direct allegation in the cross-complaint that on August 6, 1914--the date when the Land Department finally decided against the validity of cross-complainant’s attempted homestead entry--the land "was public land of the United States, and open to homestead settlement and entry." If this allegation be true (and, as against cross-complainant, who is the appellant, we must accept it as true), then appellant, who at all times has been in the exclusive occupancy of the land, could have renewed his application to make entry of the land under the homestead laws at any time after August 6, 1914, and before respondent initiated a right to the land by making her lieu land selection, which, as we presently shall see, she made on May 10, 1915.
On January 19, 1912, while the land was still withdrawn from entry under the Secretary’s withdrawal order of April 2, 1909, defendant filed in the local land office an application to make a homestead entry upon the land in controversy. This application was rejected by the register and receiver of the local land office on the day it was filed, upon the ground that the land had theretofore been, and at the time of defendant’s attempted entry still continued to be, withdrawn from entry by the Secretary of the Interior’s withdrawal order of April 2, 1909. Defendant appealed successively to the Commissioner of the General Land Office and to the Secretary of the Interior, by both of whom his right to make such entry while the land was withdrawn for irrigation works was denied.
Pending defendant’s appeal to the Secretary of the Interior the officers of the United States Reclamation Service reported that the lands withdrawn were not necessary to the reclamation project, and recommended the revocation of the withdrawal order. We may pause here long enough to say that it cannot successfully be maintained that the Secretary of the Interior withdrew more land than was necessary, or withdrew land that was not necessary for the contemplated irrigation works, or land that he did not intend for that purpose. The withdrawal of the land is a matter that was committed to the Land Department exclusively, and, in the absence of fraud on the part of the officials of that Department, cannot be reviewed by the courts. There is no allegation of fraud or of fraudulent intent on the part of any officer of the Land Department, and, therefore, the withdrawal order, conceded to have been made under the first form of withdrawal provided by the Reclamation Act of June 17, 1902, is conclusive on the courts, and they may not hold that the Secretary of the Interior did not intend to withraw the lands under the first form of withdrawal, or that their withdrawal was unnecessary. See Spencer v. McDougal, supra.
The decision of the Secretary of the Interior on cross-complainant’s appeal, affirming the decision of the Commissioner of the General Land Office, was filed August 6, 1914. The opinion accompanying the Secretary’s decision reads, in part, as follows:
"At the date of the proffer of this application the land was withdrawn, and therefore not subject to entry; and while it had been determined to open this tract, with adjoining lands, to disposition, the plan to govern such disposition has not been determined upon. Such plan will not, however, admit of according any preference right under this application. The application having been properly rejected, the decision appealed from must be, and is accordingly, hereby affirmed."
At all times mentioned in his cross-complaint defendant was a citizen of the United States, possessed of all the qualifications essential to qualify one to make a homestead entry on the public lands of the government. At all times since January 15, 1912, the land has been in the exclusive occupancy of defendant, who on that date went upon the land, made settlement thereon with the intention of perfecting title thereto under the homestead laws, and since then has cultivated the whole tract and expended a considerable sum for improvements thereon. All these facts were known to the officers of the Land Department.
On May 10, 1915, or approximately nine months after the Secretary of the Interior had ruled adversely to defendant’s attempted homestead entry, and more than two years after that officer had made his order revoking his withdrawal order of April 2, 1909, and had directed the revocation order to be noted on the records in the General Land Office and in the local land office, plaintiff filed in the local land office an application to select the land under the provisions of the act of Congress of May 2, 1914 (38 U.S. Stats. 372). By this act of May 2, 1914, it is provided that--
"The state of California or its grantees may, with the approval of the Secretary of the Interior, reconvey to the United States any of the lands heretofore granted to said state in the townships authorized to be resurveyed by the act of July 1, 1902, * * * and select in lieu thereof an equal amount of vacant, unappropriated, surveyed, unreserved, nonmineral public lands within said state."
It also is provided by the act that "the Secretary of the Interior may make proper rules and regulations" for carrying the act into effect.
It is alleged in the cross-complaint that, prior to the filing of plaintiff’s application to make such lieu land selection under the act of May 2, 1914, and during the pendency of defendant’s appeal from the decision of the register and receiver of the local land office denying his application to make a homestead entry, the Secretary of the Interior promised plaintiff that he would allow her to make application for the land under the act of May 2, 1914, and would waive the Department regulation requiring an affidavit of nonoccupancy, and that he would notify the register and receiver of the local land office, when her application should be received by them, to forward it immediately to the General Land Office. Plaintiff did not file with her application to select the land any affidavit showing the land to be unoccupied. It further is alleged in the cross-complaint:
That on November 29, 1915, the Secretary of the Interior "rendered a decision in writing, in which, * * * stating and admitting that said land was occupied land and claimed by others than said Sarah F. Donley, * * * he stated and admitted that said land was reserved land, directed the allowance of the said application of said Sarah F. Donley, and directed that she be excused from making any affidavit of nonoccupancy, or from making any affidavit that the said lands were of the kind and character which were subject to entry under said act of Congress; * * * that prior to the making of said decision by the Secretary there was never made any order for the restoration of said land to entry from the withdrawal hereinbefore alleged, other than the revocation hereinbefore mentioned"
--referring to the order of revocation made by the Secretary on March 18, 1913. It then is alleged that thereupon, in accordance with said decision of the Secretary of the Interior, plaintiff’s lieu land selection was allowed, and that thereafter the patent was issued to her.
Upon these allegations it is claimed that officers of the Land Department, by mistake of law, have given to plaintiff land which, on the undisputed facts, defendant was entitled to acquire from the government; that therefore plaintiff in equity stands as trustee for defendant; and that a court of equity will compel her to make a proper conveyance to him.
The principal ground for the assault upon the patent is that, at the date of plaintiff’s lieu land selection, the land was not "vacant," because it was in the exclusive occupancy of defendant; that that fact was well known to the officers of the Land Department; but that, solely by reason of their mistaken view of the law, they decided that defendant’s occupancy did not constitute an obstacle to the issuance of a patent to plaintiff. Without doubt, if the allegations of the cross-complaint be true, and as such they must be accepted here, the officers of the Land Department, at the time when plaintiff made application to select the land, and at all times during the proceedings leading up to the issuance of the patent to her, had knowledge of all the facts respecting defendant’s exclusive occupancy of the whole tract. There was, therefore, no mistake respecting these facts. Knowing the facts, the Land Department concluded, nevertheless, that, not withstanding the land was at all times exclusively occupied by defendant, plaintiff was entitled to select it under the provisions of the act of May 2, 1914. That act expressly declares that the land selected in lieu of that reconveyed to the United States must be "vacant, unappropriated, surveyed, unreserved, nonmineral, public land."
Vacant land is such as is absolutely free, unclaimed, and unoccupied. Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 F. 4, 13, 50 C. C. A. 79, 61 L. R. A. 230. It is contended, therefore, that since the land was exclusively occupied by defendant at the date of plaintiff’s lieu land selection, and also because the Secretary of the Interior, solely for plaintiff’s benefit, waived the Department regulation requiring an affidavit of nonoccupancy, the patent to plaintiff was issued in consequence of errors of law on the part of the Land Department officials. But, even if this contention be maintainable, nevertheless, to entitle cross-complainant to the affirmative relief that he prays in his cross-complaint, it is not sufficient merely to show that the Land Department has fallen into error through a mistake of law. It must also be shown that the error was injurious to cross-complainant’s vested rights; for:
"To enable one to attack a patent from the government, it is not sufficient for him to show that there may have been error in adjudging the patent to the patentee; he must show that by the law, properly administered, the title should have been awarded to him. This does not mean that at the moment of time the patent issued it should have been awarded to him. The acts performed by him may or may not have reached that completeness; but the claimant against the patent must so far bring himself within the law as to entitle him, if not obstructed or prevented, to complete his claim." 10 Ency. of U.S. S.Ct. Repts. p. 261. The rule is that, to entitle a party to relief against the patentee, he must show a better right to the land. He must show such a right as should have been respected by the officers of the Land Department, and, being respected, would have given him the patent. He must allege facts sufficient to show that a patent should issue to him, but that, in consequence of erroneous rulings of the land officers on questions of law, a patent was denied to him. His pleading, complaint, or cross-complaint must contain allegations showing that, before the patentee’s title to the land attached, he himself had performed all the acts required by law to be done and performed by him, up to the time of filing his complaint or cross-complaint, in order to entitle him to the patent, or that he has offered to do all the acts which were required by the law to be done, but that he was prevented from doing them by reason of the errors of law committed by the officers of the Land Department and of which he makes complaint. Pierson v. Loveland, 16 Idaho, 628, 102 P. 340. In Bohall v. Dilla, 114 U.S. 47, 5 S.Ct. 782, 29 L.Ed. 61, the court, having under consideration a case somewhat like the one at bar, said:
"To charge the holder of the legal title to land under a patent of the United States, as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled to the patent from the government, and that, in consequence of erroneous rulings of the officers of the Land Department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law, properly administered, the title should have been awarded to the claimant."
We do not think defendant has brought himself within the rule announced in these cases. We do not think that he has shown that, at the date of plaintiff’s lieu land selection, he had initiated any inchoate right which, on compliance with all the requirements of the Homestead Law, would have ripened into a right to a patent.
When, on January 19, 1912, defendant made his application to enter the land under the Homestead Law, it was withdrawn from entry. By the withdrawal order of April 2, 1909, the land had been segregated from the public domain. It was not public land open to settlement or entry; defendant, when he filed his application, was but a naked trespasser. For this reason, his application to make the entry did not, of itself, give him any preference right to enter the land if and when it again should be thrown open to settlement and restored to entry. Pratt’s Case, supra; Woodcock’s Case, supra.
The only other ground upon which cross-complainant could possibly base a claim to a preference right to make entry under the Homestead Law, if and when the land should again be restored to the status of public land subject to sale and open to entry, is the fact of his occupancy of the land, exclusive and continuous from the day of his settlement thereon--January 15, 1912. But his cross-complaint fails to show that at the date of plaintiff’s lieu land selection he, by reason of his occupancy of the land, had any such preference right, since it fails to negative the possibility that the land had been restored to settlement and entry three months or more before plaintiff initiated her inceptive right to the land by her lieu land selection. The Homestead Law gives to an occupant of public land that is open to settlement, and who intends to make a homestead entry, three months after he settles upon the land within which to file his homestead application. Act May 14, 1880, 21 Stat. L. 140 (U. S. Comp. St. § § 4536-4538), in connection with sections 2265 and 2266, Rev. Stats.; Moss v. Dowman, 176 U.S. 413, 20 S.Ct. 429, 44 L.Ed. 526; Rio Grande Western R. Co. v. Stringham, 38 Utah, 113, 110 P. 868. It will be seen, therefore, by an examination of the statutes referred to, that a person claiming a legal settlement under the homestead laws, and a right to exclusive occupancy, must base his claim either upon an entry, lawfully made, in the Land Office while the land is open to entry, or upon a lawful settlement made within three months prior to such entry. For if, within the three months afforded the settler by the act of May 14, 1880, the preference right thereby given him is not exercised by him by filing the application that initiates an inchoate right to the land, the offer of the government is not accepted, and no right in the occupant to acquire the title is initiated. The title to the land remains unaffected, subject to the control and disposition of the government, as before the settler’s occupancy. Buxton v. Traver, 130 U.S. 232, 9 S.Ct. 509, 32 L.Ed. 920; Rio Grande Western R. Co. v. Stringham, supra.
Therefore, in order to show that, at the date when plaintiff made her lieu land selection, cross-complainant possessed a preference right by reason of his occupancy, he must allege and prove that at that date the land had not been completely restored to entry for a period of three months; for, if it had been, and he thereby was afforded all of three months after his settlement became lawful within which to make application to enter the land in the Land Office, he lost his preference right at the expiration of the three months. He has failed utterly to allege facts necessary to show the retention by him of such preference right up to the time when plaintiff made her lieu land selection. As we already have said, he seems studiously to have refrained from attempting to show the precise date when the land was completely restored to entry. There is, however, the allegation, heretofore adverted to, that on August 6, 1914, the land "was public land of the United States, and open to homestead settlement and entry." This allegation shows, beyond peradventure, that the restoration order of March 18, 1913, became effective as a complete restoration of the land to entry much more than three months before plaintiff made her lieu land selection on May 10, 1915. If the land was open "to homestead settlement and entry" on August 6, 1914, as alleged, then cross-complainant had all of nine months before plaintiff’s selection within which to renew his application to enter the land under the Homestead Law.
The rule is that, as between private parties, rival claimants to the land, all intendments are in favor of the validity of a patent issued to one of the parties by the United States government. The burden is upon him who is attacking the patent; for, as we have seen, to entitle a party to relief against a patent issued by the government, he must show a better right to the land than the patentee, such a right as, in law, should have been respected by the officers of the Land Department, and, being respected, would have given him the patent. It is not sufficient to show that the patentee ought not to have received the patent. From this it follows that the burden is upon defendant to allege in his cross-complaint, and prove at the trial, that he has performed, or at least offered to perform, each and every act required by law to entitle him to a patent, excepting only such acts, if any, as he may have been prevented from performing by reason of the error of law claimed to have been committed by the Land Department; and, as to the latter acts, the burden is upon him to allege and prove every fact necessary to show that he was prevented from exercising his right to take such steps as would entitle him to a patent. It is not sufficient merely to allege, as the bald conclusion of the pleader, that defendant was prevented from exercising his right. He must allege the facts from which the court can see that, by reason of the error of law complained of, he was precluded from exercising his right to have the patent issue to him. To make such a showing, it was incumbent upon defendant to allege in his cross-complaint the facts, if any, which show that the land had not been completely restored to entry until within three months prior to plaintiff’s selection.
From recitals in the written opinion handed down by the Secretary of the Interior, when that officer ruled adversely to defendant’s attempted homestead entry--an entry attempted to be made while the land was withdrawn for irrigation works--we might surmise that, at the time when the Secretary’s opinion was rendered, August 6, 1914, the land had not as yet been completely restored to entry, notwithstanding that the order of March 18, 1913, revoking the withdrawal order of April 2, 1909, had been made more than sixteen months prior to the decision of the Secretary on August 6, 1914. But a recital in an exhibit, or in a document incorporated into a pleading, cannot take the place of a necessary averment of fact. Much less can such recital be treated as negativing the direct averment that on August 6, 1914, or a little more than nine months before plaintiff made her lieu land selection, the land "was public land of the United States, and open to homestead settlement and entry."
It cannot successfully be contended that, after the expiration of the three months next following the date when the land was restored to settlement and entry, cross-complainant’s continued occupancy of the land gave him a right that entitles him to attack the patent that has been issued to plaintiff. As against a mere intruder, or one having no higher or better right than the occupant, one in possession of public land is, it is true, to be treated as the owner of the land as against all but the United States; but, as against one connecting himself with the government title, this mere occupancy must yield to the higher right. Therefore defendant’s occupancy, under license or permission of the government after the land was restored to entry, but without title or the initiation of any inceptive right to the title, is without avail against plaintiff, as the holder of the legal title, even if it be true, as claimed by defendant, that plaintiff’s title is voidable at the instance of the grantor, the United States government. Mere occupancy of public land and improvements thereon give no vested right therein as against the United States, and consequently none against any purchaser from the government. Sparks v. Pierce, 115 U.S. 408, 6 S.Ct. 102, 29 L.Ed. 428; Mott v. Hawthorn, 17 Cal. 58; Doran v. Central P. R. R. Co., 24 Cal. 245; So. P. R. R. Co. v. Garcia, 64 Cal. 515, 2 P. 397; McLaughlin v. Menotti, 89 Cal. 365, 26 P. 880; Rio Grande Western R. Co. v. Stringham, supra. In Sparks v. Pierce, supra, Mr. Justice Field, speaking of a somewhat analogous situation, said:
"The case presented, therefore, is that of occupants of the public lands without title, and without any attempt having been made by them, or by any one representing them, to secure that title, resisting the enforcement of the patent of the United States on the ground of such occupation. Mere occupancy of the public lands and improvements thereon give no vested right therein as against the United States, and consequently not against any purchaser from them. To entitle a party to relief against a patent of the government, he must
show a better right to the land than the patentee, such as in law should have been respected by the officers of the Land Department. * * * It must affirmatively appear that the claimant was entitled to it, and that, in consequence of erroneous rulings of those officers on the facts existing, it was denied him."
At no time after August 6, 1914, when the land again became subject to lawful settlement and to entry under the homestead laws, did defendant, or any one representing him, make any attempt to take the steps necessary to secure the government’s title. At any rate, if any such attempt was made, the cross-complaint fails to show it.
For these reasons we are constrained to hold that cross-complainant has not shown that at the date when plaintiff’s inceptive right to the land attached-- the date of her application to make a lieu land selection under the act of May 2, 1914--he possessed any preference right to enter the land under the Homestead Law. He has failed to connect himself with the paramount source of title. The demurrer to the cross-complaint was therefore properly sustained.
Judgment affirmed.
We concur: SLOANE, J.; THOMAS, J.