¶1(on motion for rehearing). The respondents have argued in their brief the decision and mandate of this court leave the essential controversy unresolved. This is due to the fact the case was tried and appealed on the contract theory rejected by this court. The respondents desire to *43retry the case on new theories of irrevocable license in the nature of equitable easement, estoppel, and other principles. This, they cannot do. However, in our opinion we stated:
“We leave the parties as they were at the last moment when they were in agreement, that is when dam builder, Mann, had completed his original construction and repairs in the spring of 1957.”
¶2Preceding this quotation, we stated Laitsch and Dunlop had no contractual rights against each other. This statement must be read in connection with increasing the height of the dam. We recognize the parties had rights in the status quo with respect to the maintenance and repair of the dam resulting at that time from the voluntary execution of the void agreement. Respondents ask us to decide what those rights are. Considering the arguments to be new matter, which they are in effect, the appellants’ brief does not answer them. We believe it advisable to remand the case for a determination of the rights of the parties to and resulting from the dam as it existed in the spring of 1957 but such determination is limited to those rights and does not include the increasing of the height of the dam or the area of the flowage over that of the spring of 1957. If necessary, the trial court should grant leave to amend the pleadings. The mandate is modified to read: Judgment reversed, with directions for further proceedings consistent with the opinion and this memorandum. Rehearing denied, without costs.