(dissenting).

I think that if the majority opinion is allowed to stand it will be cited as authority for a rule relating to affidavits filed in support of motions for summary judgment which is contrary to much that has been said both in this and in other circuits.

To plaintiffs’ amended complaint alleging negligent operation of defendant’s dam (and which the court holds was a sufficient pleading), defendant filed an answer including therein as a “separate *674 and additional defense” allegations that the plaintiffs’ predecessors executed and delivered to defendant the release and easement, setting it forth in haec verba.

Then followed the motion for summary-judgment, accompanied by the Hale affidavit. Plaintiffs filed counter affidavits. Upon this motion the trial court ordered that summary judgment be granted only in- part, specifying that it appeared without substantial controversy “that plaintiffs are bound by the release and easement agreement. * * * The summary judgment will be denied subject to the above reservation.”

As the majority opinion indicates, it might have been better if the court had specified, in so many words, just what the issues remaining for trial were. I agree that nothing should here turn on any informality at this point. Necessarily the issues were, in the language of the trial judge, whether defendant had “abused the easement”, and whether it had done “anything wrongful or negligent.” 1

The first place where the majority opinion falls into serious error is in simply misreading the court's order and importing into it something which the court below most assuredly did not say. The order, exactly as written, is reproduced in the margin, with the operative words of the order emphasized. 2 The majority opinion amends this order by asserting that the part which denies the motion to strike from the Hale affidavit was an acceptance of that affidavit “as uncon-troverted”. The order did no such thing. This pai’t of the order referred to a motion to strike which, as the record shows, was to strike all of the affidavit “beginning with paragraph 3 to the end of the affidavit.” This was ¡all of the affidavit except Hale’s name, residence and occupation. The part sought to be stricken included the part which set out the written easement. Of course the motion to strike was properly denied. There were not any other motions to strike, and there was no motion to strike separate parts of the affidavits. 3 To say, as do the majority, that the court, by properly denying a motion to strike such an affidavit, thereby makes an adjudication that everything in the affidavit is true, is to my mind unthinkable.

*675 Again the opinion misstates both the record and the law when it says of this refusal to strike: “ * * * thus holding them established by failure to deny.” This court dealt with a situation not distinguishable from this in Hoffman v. Babbitt Bros. Trading Co., 9 Cir., 203 F.2d 636 . There defendant filed affidavits. Plaintiff Hoffman filed none. This court said, 203 F.2d at page 638 : “The Hoffmans were under no duty of submitting their evidence to the court upon affidavits, and the affidavits were not conclusive as to the facts stated therein.” (Emphasis mine.) The district court in the Hoffman case obviously held that the facts stated in the affidavits, filed by defendant alone, were “established by failure to deny.” We held that to be error. Now, if the trial court here held the same way, regard for our decision in Hoffman would require a reversal.

But the situation here, for even more reasons than that, requires reversal. The conclusions of Hale’s affidavit on whether the fluctuations on these January, 1949, days were greater than those prior to December 22,1926, (see footnote 1, supra) were directly controverted by the circumstances set forth in counter affidavits filed by plaintiffs. These disclosed the unprecedented character and extent of the flooding on these January days, and other circumstances similar to those hereafter related where I shall describe the testimony of plaintiffs on this point. 4

But whether my brethren here have erroneously read the record of the trial court’s order to include something which the trial court did not in fact decide, is not, as I view it the essential and fundamental error in their decision. For viewed in either light, that is to say, in theirs or mine, the record discloses that there was a genuine issue of fact upon the question whether at the time of the flooding defendant was violating the express condition of the easement: “ * * provided future fluctuations shall not exceed those heretofore occurring in the operation of said * * * plant.” That issue, like any other issue, in the ordinary case, must be tried not upon affidavits but upon the sworn testimony of witnesses in open court subject to the usual tests of cross-examination and other checks of credibility. Rule 43 F.R. C.P. Whether Hale was telling the truth or not was a question which under our system was for determination by the jury. His affidavit stated that in the month of January, 1949, “He was familiar with the operation of the Oneida plant.” Just how familiar was he? Cross-examination could be most enlightening, and the cross-examiner would be entitled to ascertain the accuracy of his purported memory as to how the plant was operated prior to December 22, 1926. Neither the trial court nor this court has any right to accept Hale’s affidavit upon this point. As stated in F.A.R. Liquidating Corp. v. Brownell, 3 Cir., 209 F.2d 375, 379 , “although an affidavit filed in support of a motion for summary judgment may be considered for the purpose of ascertaining whether an issue of fact is presented, it cannot be used as a basis for deciding the fact issue.”

If, as the opinion asserts, the trial court in its order accepted the statement of Hale as an uncontroverted fact, the court erred for the reasons stated in Hoffman v. Babbitt Trading Co., supra. If, as I view the order, the trial court merely ruled “that plaintiffs are bound by the release and easement agreement”, and ordered the remaining issues tried, then the affidavit of Hale upon the issue of how much fluctuation occurred and how it compared with earlier fluctuations must be laid aside as no proof whatever. If was functus officio.

Notwithstanding no single witness was called or testified on behalf of the defendant upon the issues here for trial, 5 *676 the majority opinion treats the -Hale affidavit not only as proof, but as establishing “uncontroverted” facts. Says the opinion: “The affidavit of Hale, based on personal knowledge, also contains a positive assertion as to this basic incident * * *. No direct denial thereof appears in the affidavits or testimony. * * * It was also an uncontroverted fact that water had been fluctuated at the dam in exactly the same manner * * * as it had been during the period prior to the date of the grant.”

Where does the court find this “uncon-troverted fact”? No witness so testified. As the opinion discloses, the court takes all this from the Hale affidavit and from no other source. This flies in the face of a multitude of decisions such as that in Hoffman v. Babbitt Bros. Trading Co., supra, where we said, 203 F.2d at page 638 : “The Hoffmans were under no duty of submitting their evidence to the court upon affidavits, and the affidavits were not conclusive as to the facts stated therein.” Here, the court, in deference to the accepted rule, should have said: “The Griffeths were under no duty of submitting their evidence to the court upon affidavits, and the Hale affidavit, upon the issues remaining for trial, was not evidence at all.” To use the language of F.A.R. Liquidating Corp. v. Brownell, supra, “it cannot be used as a basis for deciding the fact issue.” 6

Wholly overlooking our statement in Hoffman v. Babbitt Bros. Trading Co., supra, that the plaintiffs there “were under no duty of submitting their evidence to the court upon affidavits,” the court here reverses that by saying: “There is the direct and positive statement of Hale, above set out * * *. Plaintiffs filed no affidavits making an issue of the amount of fluctuation * * In the Hoffman case we called attention to the fact that had the case been tried upon oral testimony as it should have been, “the affiants would probably be called to' the stand for examination and cross-examination.” Here Hale, an interested, and presumably biased witness, never called by defendant, nor subjected to cross examination, filing what the court characterizes as “uneontroverted affidavits”, furnishes the basis for a directed verdict! This cannot be right. For, as stated in Arn-stein v. Porter, 2 Cir., 154 F.2d 464 , 469: “If, after hearing both parties testify, the jury disbelieves defendant’s denials, it can, from such facts, reasonably infer access. It follows that, as credibility is unavoidably involved, a genuine issue of material fact presents itself. With credibility a vital factor, plaintiff is entitled to a trial where the jury can observe the witnesses while testifying. Plaintiff must not be deprived of the invaluable privilege of cross-examining the defendant — the ‘crucial test of credibility’ — in the presence of the jury. Plaintiff, or a lawyer on his behalf, on such examination may elicit damaging admissions from defendant; more important, plaintiff may persuade the jury, observing defendant’s manner when testifying, that defendant is unworthy of belief.” “ ‘[T]he mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact.’ ” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628 , 64 S.Ct. 724, 729 , 88 L.Ed. 967 .

If I am right in my view that the case must be decided upon the testimony of witnesses, given in open court, with no aid whatever from affidavits, then the solution of our problem is not hard to find. The record shows a substantial *677 case for the jury, upon which the jury might properly find (a) that the fluctuations brought about on the dates here in question did “exceed those [before 1926] occurring in the operation” of the plant, and (b) that in any event the defendant exercised its easement in a negligent manner.

Plaintiff’s evidence sufficiently disclosed facts from which the jury could infer (a) that the flooding of plaintiff’s lands on January 7, 1949 was caused by the fluctuations which defendant made in the flow of Bear Creek; 7 (b) that this flooding was extraordinary and unprecedented, and far exceeded, both in extent and resultant damage, anything which had ever occurred before; and (c) that these fluctuations exceeded those authorized by the written easement.

The suggestion in the majority opinion that “There was no proof that the overflow may not have been caused by ice jams breaking and releasing water in tributaries of the Bear between the plant and the lands of plaintiffs” is something the jury would be free to disregard, for a jury which lives in the cold country knows, and we do too, that such tributaries, unregulated by dams, do not emit freshets during January days like these when the thermometer registered successively, zero, three above zero, eight below, thirteen below, four above, and two above, on the 2d, 3d, 4th, 5th, 6th and 7th of January. On such days a stream merely freezes harder.

The unprecedented character and extent of the flooding in itself permits an inference that something new in the way of fluctuation control was being tried. Witness after witness testified for the plaintiffs that no such flowage had ever occurred before. Some testified that in earlier years the water overflowed on low sloughs, that there had been some overflow, but nothing like this. 8 Others, like the plaintiffs and members of their families, who lived on this land from the time the dam was built, testified there was never any such flooding before.

Now, if we consider that these “uncon-troverted affidavits” are discarded as they should be, it is impossible to say that the jury were not warranted in inferring that the fluctuations exceeded those authorized by the written easement. Indeed, the Hale affidavit on which defendant sought summary judgment shows on its face a complete misapprehension of the terms of the easement. The granting portion thereof *678 creates “an' easement for the right to continue'as aforesaid the manipulation and fluctuation of the flow of said river as it passes in its natural channel through or along the lands owned * * * by the Grantors”. (Emphasis added.) If previous fluctuations, carried the water to say 2000 feet above sea level, this would mark the limit of the granted right of fluctuation “ ‘as it passes in its natural channel through or along the lands’ ”. A fluctuation to 2001 feet would be something outside the grant.

*678 But wholly apart from that, even assuming a granted right measured by quantities released at the dam, a jury, after hearing Hale, watching his demeanor, and seeing him cross-examined, would have a right to disbelieve testimony he might give in line with his affidavit. For the record showed and the jury drawn from that district would know that there were other cold winters in the years after the dam was first built in 1913 and prior to December 22, 1926, when the easement was given, and could infer that in those cold streams there was ice in the river. Never before had water flowed over these lands to the depth of a man’s armpits, washing away haystacks and drowning cattle, and it is a fair inference that the fluctuations were thus kept moderate because the flow from the dam was regulated with these weather and ice conditions in view, and with a reasonable regard for the situation of the farmers below.

Furthermore as the case was here presented defendant did not bother to call a single witness to explain a situation which cried aloud for explanation. It is my view that the evidence presented made a case for the jury upon the question of whether the defendant abused the easement or violated and exceeded its conditions and limitations even if we assume that the burden of proof was upon the plaintiffs. When defendant pleaded its so-called “third defense” stating the easement and its claim of acts under the easement, it was definitely proceeding on the theory that it was pleading an affirmative defense. 9 It was an affirmative defense. Such is the Idaho rule. Loosli v. Heseman, 66 Idaho 469 , 162 P.2d 393 . 10 For when plaintiffs showed that notwithstanding their protestations defendant continued to flood their lands by the manner in which it suddenly released larger amounts of water controlled by it, plaintiffs made a prima facie case for damages. Crawford v. Cobbs & Mitchell Co., 121 Or. 628 , 253 P. 3 , 257 P. 16 ; Taylor v. Indiana & Michigan Electric Co., 184 Mich. 578 , 151 N.W. 739 , L.R.A.1915E, 294; Wargo V. Connecticut Electric Light & Power Co., 127 Conn. 629 , 18 A.2d 924 . The pleading and proof of rights under an easement was up to defendant. This was its burden.

But even if we assume a complete lack of proof that there was an actual violation of the terms of the easement, there was I think an abundance of evidence of negligence on the part of the defendant. Indeed, to my mind the evidence shows a shocking degree of negligence amounting to a ruthless disregard of the rights of the plaintiffs. On January 3 or 4, 1949, plaintiff noticed the unusual flooding of the river; it was on the southern end of his property and had passed the fence. He called Cushman, defendant’s manager and superintendent, telling him that the water was flooding his ground and damaging his fence. Cushman said he did not think it was; they never had any flooding in that section before. *679 Plaintiff asked Cushman to come and look at the situation; Cushman was too busy and did not have a car. Plaintiff offered to take him in his own car, and the parties made an appointment to meet at the company office the next morning. When plaintiff went to Cushman’s office he told Cushman again that the water was flowing over the ground and destroying the fence. Cushman said: “We will check into it” and the parties then agreed to meet on the Bear River that night near where the water was flowing. At the appointed time and place Cushman did not appear. Plaintiff talked to Cush-man the next morning on the telephone and asked why the latter had not appeared. Cushman replied that he looked that morning from the top of a hill with field glasses and he did not see any water there. Plaintiff told him that the water was not there in the morning; that it came up in the evening. Cushman replied that he looked “this over with field glasses and he did not see any water”. Cushman did not seem very concerned.

As I understand the majority opinion it does not question the soundness of the cases collected in Jones v. South Carolina Power Co., 191 S.C. 419 , 4 S.E.2d 625, 628 , 11 which are illustrative of the principle encompassed by the maxim — sic utere tuo ut alienum non laedas. See in accord Baker v. Pierce, 100 Cal.App. 2d 224 , 223 P.2d 286 . Exhibit 8, in evidence here, was furnished by defendant in response to plaintiffs’ interrogatories and shows that throughout the period of time here in controversy it was not only creating daily fluctuations in the natural flow of the stream but was actually releasing on each day from January 3 to January 7, at the very time when plaintiffs were informing defendant of their flood troubles, substantial quantities in excess of the natural flow of the stream.

I think that the trial court utterly disregarded the right of the jury in the exercise of its proper functions to draw reasonable inferences both of negligence and of the abuse of the easement from the evidence adduced by the plaintiffs. The refusal of trial judges and even of appellant judges to permit jurors to exercise this function of applying reason and common sense in drawing inferences from facts proven requires constant correction at the hands of the courts of last resort. 12 “It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, *680 judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 35 , 64 S.Ct. 409, 412 , 88 L.Ed. 520 .

I think that the judgment should be reversed and the cause remanded for a trial where the issues may be submitted to a jury in whose hands they rightly belong.

. This necessity arises not only from the terms of the written easement but from general legal principles as well. The easement was subject to an express condition: “provided future fluctuations shall not exceed those heretofore occurring in the operation of said Oneida Plant.” The right granted was a qualified one: “an easement for the right to continue as aforesaid the manipulation and fluctuation of the flow of said river as it passes in its natural channel through or along the lands owned * * * by the grantors.” Thus there was necessarily a question of fact whether those January, 1949, fluctuations did “exceed those [before Dec. 22, 1926] occurring in the operation of said Oneida Plant”.

And as noted hereafter as well as in the majority’s quotation from Jones v. South Carolina Power Co., infra, even if the fluctuations were strictly within the stated limits, liability would arise, if the easement is exercised “ ‘in a negli; gent or wanton manner’.”

. “Order — The defendant in the above-entitled cause filed a motion for summary judgment, and argument was had to the Court, following which the Court ordered briefs submitted. Said briefs have been filed and duly considered by tbe Court. Now, therefore, the Court is. of the opinion that the summary judgment should he granted in part as suggested at oral argument in that plaintiffs are hound hy the release and easement agreement. This can be taken care of at the time of the trial. The summary judgment will be denied subject to the above reservation. In view of-the above, the motion to strike certain portions of the aflidavit of J. A. Hale in support of the motion for summary judgment will be denied, and it is so Ordered.”

. In what seems to me to' be a strained effort to magnify the Hale aflidavit into something it was not, the opinion says: “Here the aflidavit of Hale was an extension of the answer.” I must admit this sounds like something new to me. But what of it? Under Buies 7(a) and 8(d), it must be “taken as. denied”.

Again, calling upon “the spirit of pretrial procedure”, the opinion says, “The Hale aflidavit is not used as proof, but to define the issues.” I think contrary to the majority, that the trial court assuredly did not use the Hale affidavit as proof. It is only the majority opinion that treats it so.

. This was testimony which would warrant the jury in disbelieving Hale’s statement, had he given it on the stand.

. The record shows that plaintiff, who had propounded interrogatories to defendant under Rule 33, called Hale, *676 defendant’s Vice-President to the stand, and after developing that Hale had made the answers, read the interrogatories and answers into the record. None of these amounted to a denial of any of the testimony given on behalf of the plaintiffs.

. “Such an affidavit may be received in support of a motion for summary judgment for the very limited purpose of determining whether an issue of fact exists, but it can not be used to decide a contested issue of fact.” Lacy v. United States, 7 Cir., 207 F.2d 352, 354 .

. The proof of causation was clearly sufficient to carry the case to the jury. Exhibit 7, which was first furnished by the defendant in response to interrogatories, is a chart showing how the flow of the water past the dam varied from day to day. This was a chart made automatically by a recording device which showed the flow of water in certain units. This discloses that the flow was lessened and storage of water behind the dam accomplished during each night and then during the day the water was released and the flow greatly increased. Thus during the night of January 5-0, 1949, in the hours following midnight, the flow was 80 units but at 8 A.M. the flow had jumped to 585 units and it continued at approximately that rate until afternoon when the flow was shut down and tapered off during the afternoon to 93 units and 80 units. But at approximately 5 o’clock that evening the flow being released jumped to 623 units and continued high through the evening but tapered off again to 80 units by midnight. This pattern is shown to have continued throughout the period from January 1 to January 7 and the whole chart permits the inference that the defendant operated and controlled its dam in that manner throughout the period here in controversy. This constant rising and falling of the water in the stream is manifest from the testimony of the plaintiff who related his conversation with the plant superintendent in which he pointed out that the high water was not there in the morning but that it came up in the evening. This conversation was the third or fourth of January and at the time when plaintiff was vainly attempting to get the superintendent to take enough interest to come down and take a look.

. “A. On some of the low lands the water would back up, — yes it would back up into the low land that we call sloughs due to the ice blocking the channel of the river but it never got on the land.”

. As a piece of pleading it was wholly defective, for it did no more than plead the written easement. There was no allegation that on the dates in question defendant caused no more fluctuation than that authorized by the easement, or that it complied with the conditions stated therein.

. Where, as here, the relevant facts are peculiarly within the knowledge of the defendant, the burden of proof should be there. For a discussion of this principle see United States v. Fleischman, 339 U.S. 349, 362 , 70 S.Ct. 739 , 94 L.Ed. 906 ; Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 370; Wig-more on Evidence, 3d ed., § 2486, pp. 275 to 276. Further on the rule in Idaho see Johnson v. Twin Falls Canal Co., 66 Idaho 660 , 167 P.2d 834 , and Kiesel v. Bybee, 14 Idaho 670 , 95 P. 20 .

. The case contains the following quotation from Watts v. Norfolk & W. Railway Co., 39 W.Va. 196 , 19 S.E. 521, 523 , 23 L.R.A. 674 : ‘“Neither a right of way conferred by grant nor one conferred by condemnation will give exemption from damages consequential upon the improper or negligent exercise of the rights, and not from the fair, proper, and reasonable exercise of it, for the reason that neither in making such grant nor in the assessment upon an inquisition are damages contemplated or included that are to be solely attributed to such misuse of the right.’ ” The court also quotes from Sims v. Ohio River & C. Railway Co., 56 S.C. 30 , 33 S.E. 746 , 748: “ ‘A railway company may acquire the legal right to construct a road over the lands of another, but it must be built with ordinary care, without negligence. If damage result from such negligent act on the doing of lawful work, the company must respond, and, in a suit like this, whether an act is negligent is a question of fact.’ ”

. Two interesting and even striking illustrations of cases in which courts of appeals have been reversed for denying the exercise of this function by the triers of fact are found among the decisions handed down during the present term of the Supreme Court. They are Williams v. Carolina Life Insurance Co., 348 U.S. 802 , 75 S.Ct. 30 , summarily reversing the Fifth Circuit, and McAllister v. United States, 348 U.S. 19 , 75 S.Ct. 6 , reversing a decision of the Second Circuit, 207 F.2d 952 , which had rejected reasonable inferences drawn by the trial judge “upon balance of the probabilities.”