We have a strange proceeding before us. Counsel for the prevailing parties in this case as reported in 112 Utah 554,189 P.2d 135, 140, after that decision and with the consent of the lower court, filed an amendment to his various complaints alleging that there was appurtenant to the land involved in that decision, 119 shares of water stock of a named irrigation company; and asked the lower court to include those shares in its judgment to be rendered in conformity *Page 425 with the following directive of this court — which is the decision on appeal reported as above:
"The judgment is reversed with directions to the trial court to enter judgment in conformity with this opinion."
Now, before us, that same counsel contends, in effect, that the amendment is unnecessary; that this issue of appurtenancy of water was previously decided and is contemplated as part of our directive. Evidently the lower court, who tried this case originally, does not agree with him, as it is holding the entry of judgment up pending a determination of that issue on the merits; upon pleadings joining that issue. Strangely enough, this same counsel did not initiate the present proceedings in order to compel the lower court to enter a proper judgment, as he now contends it should be, but seems satisfied to try the issues again. The present proceeding was initiated by the other side of the case.
I have examined the various briefs filed in this case in its different appearances before this court; and also the previous decisions rendered. I find nothing said about the appurtenancy of water to land.
The directive of this court directed specific action and did not throw the case open for further proceedings as was the case of Phebus v. Dunford et al., 114 Utah 292, 198 P.2d 973.
I see no merit to the action taken by counsel for the prevailing parties, and by the lower court; and I know of no facts upon which this court can now make the adjudication of appurtenancy. The lower court no doubt will proceed with the entry of judgment as originally contemplated, if and when he is informed of our attitude in the matter. We should inform him to proceed, and to strike the alleged "amendment" from the record. *Page 426