(dissenting). I am unable to agree with the majority opinion for the following reasons: The last sentence of section 6039, R. C. 1919, is as follows: “All such divisions and adjustments shall be made, as near as may be, on the basis of the assessed valuation of property in each of such townships, * * * and on the value of such school buildings and other property at the time of such division of such township.”
The report of the board of adjusters is as follows: “We, * * * as a board of adjusters, * * * have -decided that * * * as the valuation of Bailey township is $403,723 and the valuation of Rex township is $603,354, * * * making the ratio approximately 40 to 60; * * * that the outstanding indebtedness * * * being $2,400, shall be assumed -by the new townships on this basis, equaling $960 and $1,440- respectively.” This report of the adjusters, which is set out in full in the majority opinion, was, by appellant’s answer, admitted to have been signed by the members of the board and filed as required by law. It is positive and explicit as to the determination made by the board of adjusters. -On its face it shows no lack of -compliance with section 6039 and section 6040, R. 'C. 1919.
However, in the answer demurred to, appellant also alleges that “-Said board of adjustment, by mutual agreement, determined that they would ascertain the proportion which the assessed valuation of the plaintiff bore to the assessed valuation of the -defendant, and make a report dividing all of the indebtedness on that basis, *316but with the specific understanding that the board of supervisors of the plaintiff and the defendant assemble in a joint meeting and adjust the road and -bridge indebtedness upon a basis of each township being chargeable for the work and material furnished within its boundaries, but by oversight or mistake in drafting the said adjusters’ report, this latter provision was omitted from said report as signed and filed and set forth in paragraph three of the plaintiff’s complaint, and said report is therefore incomplete and incorrect, and is not in fact the true determination and adjustment made by the board of adjustment formed for that purpose.”
Inasmuch as the question before this court is whether a demurrer was properly sustained to such an answer, the truth of the allegations in appellant’s answer is admitted. But is appellant township entitled to have the. indebtedness of the old township apportioned- on the basis for which appellant now contends?
In appellants answer, it is alleged that all of the outstanding indebtedness of $2,400 was incurred for road and bridge work. If this indebtedness were to be apportioned “on the basis of each township being chargeable for the work and material furnished within its boundaries,” as appellant contends it should be, would inquiry be restricted to where that $2,400 only was spent? It might be that only $480 of that sum was expended in Bailey township, as appellant alleges, and yet, by other expenditures, Bailey township have roads and bridges of greater value than the new; Rex township. Expenditures in one township might be for bridges, while greater expenditures in the other might be for maintenance. 'Could the apportionment of the indebtedness for which appellant contends be fairly said to be on the “basis of assessed valuation * * * and on the value of * * * property at the time of such division” ? The basis of apportionment which appellant alleges the adjusters wanted to have used, and which appellant now seeks to have used is one of -amount of expenditure, rather than one of “value at the time of such division.” The adjusters have actually, though appellant alleges inadvertently, made the adjustment according to law. Their report should not now be set aside, in order that they may apportion the indebtedness on a basis not contemplated by law.
The foregoing assumes that the words “other property,” in the last sentence of section 6039, hereinbefore quoted, include roads *317and bridges in the interested townships. Even under such an assumption, appellant’s answer does not allege facts sufficient to constitute a defense; but I am of the opinion that the words “other property” do not include roads and bridges. See State ex rel Mountrail County v. Amundson, 23 N. D. 238, 135 N. W. 1117; State ex rel Foster v. Ritch, 49 Mont. 155, 140 P. 731; State ex rel Missoula County v. Brown, 73 Mont. 371, 236 P. 348. In either event, the answer demurred to does not plead a defense, and, in my opinion, the demurrer was properly sustained.