#### Moxon, appellant, *v.*Wilkinson, respondent.

Statutory *construction*— act *relating to mining claims*— record *of discovery.*At tie trial of tiis action to determine tie right to tie possession of certain placer- mining ground, M. offered evidence' to prove tiat ie made and filed, in tie office of tie county recorder, a statement of iis discovery of tie ground. Tie statute, approved May 8,1873, provides tiat tiis statement siall be made and filed when “ any mining claim upon any vein or lode beaming * * * valuable deposits ” is discovered. *Held,*tiat a vein or lode bearing valuable deposits does not include a placer *422mining claim, and that the discoverer of placer mining ground is not required, by the laws of the Territory, to make or file for record a statement of its discovery. *Held,*also, that the evidence is inadmissible.

Evidence op possession op mineral land. To prove a right to the possession of said ground, M. offered evidence to prove that he dug a ditch after the filing of his adverse claim in the land office, to mine the ground, and that he occupied a dwelling-house and blacksmith shop upon the ground. *Held,*that the evidence is not admissible, and does not tend to prove that M. possessed the ground as a miner or that it is mineral land.

*Appeal from Thi/rd District, Jefferson County.*

The judgment of nonsuit was entered by Wade, J.

Johnston & Toole, for appellant.

Tbe same rule of action is to be followed in acquiring rights to placer mining ground and lode claims. Tbe court erred in excluding tbe oral testimony offered by tbe appellants to show tbeir prior rights to tbe ground in controversy. The general sections of tbe laws of tbe United States, regulating these rights, are as applicable to placer mines as lead claims. Tbe appellants’ notice and record, filed with tbe county recorder of Jefferson county, where tbe mining ground is situate, should have been admitted, there being no district recorder and no mining district.

Tbe instructions issued by tbe land office have tbe effect' of law. Tbe applicants for tbe government title to a placer mining claim must comply with them. Courts will regard these instructions and enforce them. Sts. Ex. Sess. 1873, 83, § 1; act of congress for development of mineral resources of tbe United States, approved June 10, 1872, and instructions of Land Commissioner Hon. Willis Drummond.

ChuMAseRO *&*Chadwiok, and Shober *&*Lowrt, for respondent.

There was no statute of tbe Territory or United States providing *for*tbe record in tbe recorder’s office of Jefferson county. Such a record was a void act, and could not give constructive notice to any parties. Cod. Sts. 400, §§ 23, 24, 25. Constructive notice, by recording, is wholly a creature of tbe statute. A record not provided for by statute gives no notice. *Mesick*v. *423*Smiderlamd,*6 Cal. *315; Stcmsell*v. Roberts, 13 Ohio, 148; *Chamberlm/n,*v. Bell, 7 Cal. 294.

Tbe acts of congress relating to lode claims and tbe instructions of tbe land commissioner, rebed on by appellants, are in-appbcable to placer claims. Tbe legislature bas not provided that a record shall be made of tbe location of placer claims. Appellants could only procure tbe government title by making tbe proper filing in tbe United States land office. 2 Washb. Neal Prop. 520.

Tbe bouse and blacksmith shop were placed upon tbe premises to carry on a trade, and not mine tbe same. Tbe ditch was dug after the filing of tbe adverse claim. Tbe court properly excluded testimony relating to these improvements.

Blake, J.

This action is brought to determine tbe right of possession to a tract of placer mining ground in Jefferson county, upon tbe surveyed subdivisions of tbe public lands of tbe United States. It is admitted, by tbe pleadings, that tbe respondents made their application to enter tbe premises in tbe United States land office at Helena, within tbe Territory, and that tbe appellants filed their protest and adverse claim. At the trial, tbe court excluded certain evidence offered by tbe appellants, and sustained tbe motion of tbe respondents for a nonsuit. *We*are asked to review this ruling.

Tbe appellants allege, in their amended complaint, that they bad and held their title and possession under tbe *“*rules, customs and usages of tbe miners in the district where said land is situated, and of tbe laws of tbe United States and of tbe Territory of Montana applicable thereto.” Tbe respondents deny these allegations in their answers. Did tbe testimony produced by tbe appellants tend to establish their material averments ?

No evidence was offered tending to prove that tbe appellants bad or held tbe property in controversy by vh’tue of any rules, customs or usages of any miners. On tbe contrary, tbe appellants testify that tbe ground in dispute is not in any mining district, and that there are no mining laws or customs governing its use or possession.

*424Tbe appellants offered evidence for the purpose of proving that they made a record of the discovery of the premises in the office of the recorder of Jefferson county. It appears that no other record has been made by the appellants. This evidence was rejected by the court. The appellants maintain that the act of the legislative assembly, “ providing for the location and recording of mining claims on veins or lodes,” approved May 8, 1873, is applicable to placer mining ground. Sts. Ex. Sess. 1873, 83. If this proposition is correct, the record should have been admit-, ted. This act requires a person to make, and file in the office of the county recorder, a statement of the discovery of *“*any mining claim, upon any vein or lode, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits.” § 1. The technical words contained in this clause must be construed according to their peculiar and appropriate meaning. Cod. Sts. 389. In the language of miners, a lode is a vein containing ore. Yeins are narrow plates of rock intersecting other rocks, and are the fillings of cracks or fissures. The placers are superficial deposits, which occupy the ’beds of ancient rivers or valleys. This name was given by the Spaniards to the auriferous gravels of America. Dana’s Geology ,• Simonin’s Underground Life. A vein or lode of *“*valuable deposits ” does not include a placer mining claim. This act was adopted as a substitute for the statute which prescribed the manner of locating and pre-empting quartz lodes or veins. We cannot infer from thé language of the amended act that the legislative assembly intended to affect placer mining claims, a subject on which the law-makers appear to be silent. There is no law of the Territory which requires the discoverer of a placer mining claim to make or file for record a statement respecting it. The instrument purporting to be a record of the ground in dispute, by the appellants, was not made and filed under the laws of the Territory, or the United States, and could not be a legal notice of their rights to the respondents. It was not a link in the chain of their title, and the court properly excluded it as incompetent evidence. *Mesick*v. *Sunderland,*6 Cal. 315, and cases there cited.

In legislating upon these matters, congress has recognized the distinction between lodes or veins of quartz and placer claims. The ' *425possessor of tbe former could procure tbe title of tbe United States a number of years before it was legal to grant a patent for tbe latter. Tbe act was amended by providing that “claims, usually called *‘*placers,’ including all forms of deposit, excepting veins of quartz, or other rock in place,” shall be subject to entry. Rev. Sts. U. S., § 2329. A vein or lode may be embraced by a placer claim, and tbe eleventh section of tbe act approved May 10,1872, defines tbe proceedings which are necessary for tbe adjustment of tbe rights of the parties in the possession of tbe same. Id., § 2383. Tbe appellants did not offer any evidence that they bad complied with tbe statutes of tbe United States relating to placer claims.

There is no testimony showing that any “ valuable deposits ” have been discovered upon tbe ground in controversy, or that any persons worked, improved or possessed tbe premises as a mining claim before this action was commenced. It does not appear that this tract is not agricultural land. Tbe appellants offered to prove that they dug a ditch and made improvements, for tbe purpose of mining tbe ground, after tbe bringing of tbe suit. Tbe rights of tbe parties to tbe possession of the property at or prior to tbe time that tbe appellants filed their adverse claim in tbe land office, cannot be determined by tbe subsequent acts of tbe appellants. Tbe court did not err in refusing to allow testimony concerning these facts to be introduced.

It is claimed that tbe court erred in excluding tbe evidence of one of tbe appellants, showing that be bad upon tbe premises a bouse, in which be lived, and a blacksmith shop. These improvements appear to have been made for tbe purpose of carrying on a trade. Tbe character of tbe possession, which tbe appellants seek to prove by this testimony, is not consistent with tbe title which they are trying to maintain in this proceeding. Tbe construction of tbe bouse and shop does not tend to show that this appellant possessed tbe land as a miner, or that it is mineral ground.. Conceding tbe facts to be stated correctly by the appellants, we do not think that they impair tbe rights of tbe respondents, or any persons claiming tbe property for mining purposes.

Tbe appellants failed to prove tbe material allegations of their complaint, that their possession is under tbe rules and customs of *426tbe miners in tbe district containing tbe placer claim and tbe laws • of tbe Territory and tbe United States, and it was tbe duty of tbe court to grant tbe motion for a nonsuit.

*Judgment affirmed.*