OPINION ON PETITION FOR REHEARING
The appellees seek a rehearing of the case and ask that such rehearing be en banc. As grounds therefor the appellees urge the following: (1) This Court in its opinion assumed substantive facts outside the record; (2) this Court decided the case on an issue which was not presented to or decided by the trial court, i.e., whether Congress intended to and, by implication, did reserve an easement in the 1862 Union Pacific Railroad Grant Act; (3) the issue of congressional intent in the 1862 Union Pacific Railroad Grant Act is an issue of fact which should first be determined by the trial court, after both sides are given the opportunity to present evidentiary matter; and (4) this Court erred in its legal conclusion that there was an implied reservation in the 1862 Union Pacific Railroad Grant Act. We deem none of these matters to warrant a rehearing, and accordingly the petition for rehearing is denied. We shall briefly discuss each of the matters thus urged.
I.
Counsel takes umbrage at the reference in our opinion to Elk Mountain Safari, Inc. and its operations starting in 1965 and asserts that there is no reference to such in the stipulation of facts presented to the trial court. Such is true, though the information concerning Elk Mountain Safari, Inc. is obviously a part of the overall record now before us. Be that as it may, our opinion does not turn on the operations of Elk Mountain Safari, Inc. So, whether the background information concerning Elk Mountain Safari, Inc. was technically before the trial court is really of little moment. The real and only issue resolved by our opinion concerns congressional intent in 1862, not what Elk Mountain Safari, Inc. did in 1965. A factual statement in an appellate court’s opinion which finds no support in the record is not grounds for a rehearing where the statement is in no way *891related to the basis of the decision. United States v. Gorham, 175 U.S.App.D.C. 383, 536 F.2d 410 (1976).
II.
In our opinion we stated that the Government’s primary position both in this Court as well as in the trial court has been that in the 1862 congressional grant to the Union Pacific Railroad there was an implied reservation of an easement. That statement is not entirely correct. It is true that in this Court the Government did primarily rely on the theory of an implied reservation in the 1862 grant to the Union Pacific Railroad. We stand corrected, and concede that in the trial court the Government did not rely on such a theory. On the contrary it was the appellees who themselves injected the matter into the case, and sought from the trial court a ruling that there was no implied reservation in the 1862 congressional grant.
In its pretrial memorandum the appellees framed one of the issues to be resolved as follows:
2. Whether United States was authorized to, and did in fact, reserve rights of way across Union Pacific lands for general public access to alternate public domain sections.
The stipulation of facts was couched in more general terms and listed as the first “legal issue” to be decided whether there was an “implied easement across fee lands for reasonable access to public recreation areas.” In its proposed findings and conclusions the appellees stated that one issue to be resolved as a “matter of law” was “[wjhether the United States reserved easements on behalf of the public in the patents to the fee lands issued to plaintiffs’ predecessors pursuant to the Union Pacific Railroad Grant Act of 1862.”
The trial court thereafter made the following conclusion of law:
6. Accordingly, this Court concludes that the United States has not reserved or received by grant, expressly or by implication, and does not now have, any right, by easement or otherwise, in the lands of plaintiffs for access to the east bank of Seminoe Reservoir, or for construction of public roads across the lands of plaintiffs for access to said reservoir and lands, and absent condemnation proceedings and payment of just compensation is without authority to construct such road.
Based on the foregoing, and particularly, of course, based on the conclusions of the trial court itself, we conclude that the question of whether there was an implied reservation was in the case at the trial court level. We will concede that the theory advanced by the Government in this Court in support of its implied reservation argument was not presented to the trial court.* Ordinarily a party may not lose in the trial court on one theory, and later win on appeal under another theory. But the rule is not inflexible and there are exceptions. Schenfeld v. Norton Co., 391 F.2d 420 (10th Cir. 1968). We are of the view that the instant case comes within the exception to the general rule, and that the question of congressional intendment in 1862 is a theory that can be raised on appeal, though it was not specifically raised in the trial court.
It is of more than passing interest to note that the appellees in their written brief filed with this court addressed the question of whether there was an express or implied reservation in the Union Pacific Railroad Grant Act of 1862 on its merits, and the suggestion that the matter should not have been considered by this Court because it was never before the trial court is first advanced in appellees’ petition for rehearing.
III.
Appellees assert that the matter of an implied reservation in the congressional grant of 1862 is a question of fact, and that the matter should be remanded to the trial court to conduct an evidentiary hearing *892thereon and then make its own conclusion, subject to appellate review. In appellees’ pretrial memorandum, the stipulation, ap-pellees’ proposed findings and conclusions, and the trial court’s own conclusions, it would appear that all concerned were of the view that the issue of implied reservation posed an issue of law. And that is our view too.
Again it is of interest to note that the suggestion that this case should be remanded for an evidentiary hearing on congressional intent was not made until the petition for rehearing was filed. In its brief appellees made no such suggestion. Apparently they were perfectly welcome to submit the matter to this Court as involving a question of law. Only when they suffered an adverse ruling did the appellees suddenly claim that this was an issue of fact that required an evidentiary hearing.
IV.
The real issue in the petition for rehearing is whether this Court is correct in its conclusion as to congressional intent in the 1862 Union Pacific Railroad Grant Act. We agree that this is a difficult problem and not one which is free from all doubt. However, in this connection, the petition for rehearing is simply a reargument of the matter. In spite of appellees’ dire predictions concerning the consequences of our opinion, should it be allowed to stand, we remain convinced that ours is the proper disposition of the matter. To hold to the contrary would in our view ignore the teaching of Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1896) and Buford v. Houtz, 133 U.S. 320, 10 S.Ct. 305, 33 L.Ed. 618 (1890) and would be at odds with Mackay v. Uinta Development Co., 219 F. 116 (8th Cir. 1914).
Petition for rehearing is denied, with Judges McWilliams and Doyle, to whom the case was argued and submitted, voting to deny rehearing, and Judge Barrett, also on the hearing panel and who dissented in the opinion filed May 17, 1977, voting to grant rehearing.
Judge Barrett having requested a vote of the active court on the suggestion for rehearing en banc pursuant to Fed.R.App.P. 35, rehearing en banc is denied, with Judges Holloway, McWilliams, Doyle, and Logan voting to deny rehearing en banc, and Judges Seth, Barrett, and McKay voting to grant rehearing en banc.
Perhaps the shift in legal theory between the trial court and this Court stems from the fact that apparently the Government had different counsel here than in the trial court.