(dissenting).
We think the inequality of the majority report of the referees is so pronounced that the trial court ought not to have approved it.
The report awarded 12,712 acres of Federal Taylor Grazing land to defendant and 2,178 acres to plaintiff.
It awarded 54,352 acres of deeded land to plaintiff and 51,-730 acres to defendant.
The Federal Taylor grazing lands carry only grazing privileges for which a rental must be paid. These privileges are revocable and dependent for their duration upon the unpredictable action of Congress.
If it were proper to consider the value of the Taylor grazing land, a proposition denied in United States v. Jaramillo, 10 Cir., 190 F. (2d) 300, we cannot believe that they are worth 75 percent of the value of deeded land as a majority of the referees found. One of the referees who filed a minority report evidently disagreed with that procedure. Many witnesses testified on the subject and some placed the valuation as low as 10, 15, 20, 25 and 30 percent instead of 75 percent. One witness for plaintiff placed the value at 50 percent. The entire question of what would be a proper percentage contribution to the value of deeded lands could be eliminated by dividing the land so that each party would receive substantially the same number of acres of deeded land and substantially the same number of acres of Taylor grazing land, reasonable allowances to be made of course for the different character of the land, if any.
It is true that division, giving exact acreage to each party, may not be possible or even desirable. But when the discrepancy in acreage given to each is as great as that here, it lacks the equality of treatment which the law and equity favors.
We think that a more equitable acreage division should be made or if that is not feasible, then resort should be had to section 93-6348, R.C.M. 1947, and equality of treatment be achieved by awarding compensation by one party to the other.
*464We see nothing in the stipulation that binds defendant to the award here made or to the procedure followed in reaching that award.