(dissenting in part).
The crucial question before this court is whether appellant Chicago and North Western Railway Company was entitled upon the record to summary judgment. In considering such a motion, the trial court does not decide a factual issue, but determines whether any factual issue exists which requires determination by the trier of fact. National Screen Service Corporation v. Poster Exchange Inc., 5 Cir., 305 F.2d 647; Ashwell & Company v. Transamerica Insurance Company, 7 Cir., 407 F.2d 762.
SDCL 1967, Rule 15-6-56(c) provides in part:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and *280admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."
SDCL 1967, Rule 15-6-56(e), which includes the 1963 amendments to Rule 56(e), F.R.Civ.P., states:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth 'such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in (this rule) * * *, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in (this rule) * * *, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Amendments of 1963 in boldface).
The amendments were made to overcome precedents which permitted a party opposing a motion for summary judgment to rely solely upon allegations contained in pleadings. The Advisory Committee comments on the amendments as follows: "The last two sentences are added to overcome a line of cases * * * which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a *281material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. * * * The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The * * * doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule." See Committee's notes contained in 6 Moore's Federal Practice 2021 and 2022.
Appellant railway company supported its motion for summary judgment by documentary evidence. The license agreement entered into by appellants, the offer of defendant to purchase the two lots showing its terms and conditions and the two deeds excepting from the conveyances of title certain property rights are fully set forth in the majority opinion. These instruments control and furnish requisite evidence of the intention of the parties. See Teutsch v. Hvistendahl, 72 S.D. 48, 29 N.W.2d 389; Clark v. Bergen, 75 S.D. 48, 59 N.W.2d 250. The mere allegations in defendant's pleadings that the writings fail to express the intention of the parties are not sufficient to create a genuine issue as to a material fact and thus prevent summary judgment. Liberty Leasing Co. v. Hillsum Sales Corporation, 5 Cir., 380 F.2d 1013. In opposition to the motion, defendant submitted the affidavit of his counsel. The affidavit whose form and content is governed by the rule under consideration does not set forth a 'specific fact shown to be within the personal knowledge of counsel which would be admissible in evidence. See 6 Moore's Federal Practice 2801 to 2805 and cases cited in note 17.
The judgment in my opinion should be reversed and the cause remanded with direction to grant motion of defendant railway company for summary judgment.
HANSON, J., concurs in dissent.