Arthur A. Arnhold v. United States of America, Rayonier, Incorporated, a Corporation v. United States

I would grant the rehearing sought by the appellees for the purpose of permitting further consideration by the court of a contention made in the petition of the United States which appears to me at this time to be a valid one. The petition of the United States makes two points: the first is that our opinion here is out of line with what was said in this court’s earlier opinion when the case was first here. Rayonier Incorporated v. United States, 9 Cir., 225 F.2d 642, 648 ; Arnhold et al. v. United States, 9 Cir., 225 F.2d 650 . In the first of those two opinions language was used to the effect that “liability may not be predicated on conduct occurring before the spread of the fire to the 1600 acre tract.” That language was used with respect to • the case as it then stood before the court, namely, upon the pleadings only. Subsequently on remand, the case was tried and heard upon a pretrial agreement and order which superseded the prior pleadings; and for that reason I think the point suggesting that we have disregarded the law of the case is not well taken.

However, as our opinion discloses, we had some difficulty in interpreting the findings of the district court and to a degree…