Pincock v. Pocatello Gold and Copper Min. Co., Inc., 12548

• Decision Date: 27 June 1979
• Docket Number: No. 12548,12548
• Parties: Kenton R. PINCOCK and Shirley H. Pincock, husband and wife, Plaintiffs- Respondents, Cross-Appellants, v. POCATELLO GOLD AND COPPER MINING COMPANY, INC., a corporation, Tejan Enterprises, Inc., a corporation, and Jim Desfosses and Jane Doe Desfosses, husband and wife, and all known owners of any interest in certain real property, situated in Bannock County, Idaho, Defendants-Appellants, Cross-Respondents.
• Court: Idaho Supreme Court

Page 211

597 P.2d 211

100 Idaho 325

Kenton R. PINCOCK and Shirley H. Pincock, husband and wife, Plaintiffs- Respondents, Cross-Appellants, v. POCATELLO GOLD AND COPPER MINING COMPANY, INC., a corporation, Tejan Enterprises, Inc., a corporation, and Jim Desfosses and Jane Doe Desfosses, husband and wife, and all known owners of any interest in certain real property, situated in Bannock County, Idaho, Defendants-Appellants, Cross-Respondents.

No. 12548.

Supreme Court of Idaho.

June 27, 1979.

Lloyd J. Webb, of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, Dale W. Kisling, of Maguire, Kisling & Ward, Pocatello, for defendants-appellants, cross-respondents.

Hartwell H. K. Blake, of McDermott & McDermott, Pocatello, for plaintiffs-respondents, cross-appellants.

DONALDSON, Justice.

This is an appeal from a summary judgment in favor of the plaintiffs-respondents, Kenton and Shirley Pincock, in a case involving a rather unusual ownership dispute over a group of six mining lode claims commonly known as the Lion Group Mining Claims, located northeast of the City of Pocatello. Pocatello Gold and Copper Mining Company, Limited (P.G. & C., Ltd.), incorporated in 1902 and defunct since 1921 because of its failure to file an annual statement and to pay its statutory fees, acquired a patent to this property (123.388 acres) in 1914, pursuant to patent number 389357, and recorded it in Fort Hall Mining District of Bannock County. At least so far as the record discloses P.G. & C., Ltd. never transferred its interest in these mining claims.

In 1961, one of the original subscribing stockholders of P.G. & C., Ltd., Nathan M. Eldredge, died owning 506,304 shares of P.G. & C., Ltd. common stock. In his will he left the residuary real and personal property in his estate to Kenton and Shirley Pincock. Shirley Pincock served as administrator of Eldredge's estate.

During probate of Eldredge's estate, the probate court of Bannock County ordered the first and final account of Shirley Pincock approved. That account listed the Lion Group Mining Claims as part of Eldredge's residuary estate and made no mention of Eldredge's P.G. & C., Ltd. stockholdings. The court further ordered and decreed:

"(T)hat all other property belonging to said deceased at the time of his death, or in which he had any interest, whether discovered or undiscovered, be, and the same is hereby distributed to Kenton R Pincock and Shirley H. Pincock, share and share alike. That the balance of said property in the hands of said executrix, so far as known, and hereby distributed to said Kenton R. Pincock and Shirley H. Pincock . . . is particularly described as follows, to wit:

(listing two other parcels of land, the Lion Group Mining Claims and some personal property not including the P.G. & C., Ltd. stock.)"

On October 22, 1973, the Pincocks filed a quiet title action alleging that they were the owners in fee simple of the Lion Group Mining Claims. They claimed ownership on the basis of the decree of final distribution on Eldredge's estate or, in the alternative, adverse possession either upon a written claim under I.C. § 5-207 or upon an oral claim under I.C. § 5-210. The defendants-appellants, Pocatello Gold and Copper Mining Co., Inc. (P.G. & C., Inc.), Tejan Enterprises, Inc., Jim Desfosses and his wife, answered the complaint putting the Pincocks' ownership of the claims into issue. ¹

The Pincocks moved for a summary judgment submitting one affidavit as husband and wife and the additional affidavit of Shirley Pincock individually. The first affidavit avers: that the Pincocks obtained title to the claims by virtue of the 1961 decree of the Bannock County Probate Court; that they have been paying all real property taxes on the claims since 1966; that they have visited the property at least monthly during the summer months since 1961 and occasionally during the winter; that they posted the property on various occasions, occasionally gave various organizations permission to use the property and leased the property for sheep range; that on two occasions since the filing of this action the Pincocks have removed gates and locks constructed by an adverse party attempting to block their access to the property.

In the second affidavit, Shirley Pincock avers that by virtue of the final decree of distribution of Eldredge's estate, she owns 506,304 shares of P.G. & C., Ltd.; that she also has had in her possession an additional 131,524 shares of P.G. & C., Ltd. stock; that in the summer of 1955, she was present when one Paul Desfosses, father of James Desfosses, came to Eldredge's home to inquire into whether Eldredge would sell the mine claims involved here; that she was present when Eldredge subsequently arranged to have a letter sent to Paul Desfosses and his associates to ensure no misunderstanding about his claimed ownership of the land and their attempted trespass upon it.

Appellants submitted two affidavits of Paul James Desfosses, president and manager of P.G. & C., Inc. and president and manager of Tejan Enterprises, Inc. in opposition to the Pincocks' motion. Those affidavits contend that the Desfosses' corporations' interest in the Lion Group Mining Claims is based upon assignments of common stock in P.G. & C., Ltd. from owners of stock originally issued to E. C. Manson, J. I. Guheen, D. M. Daniels, Joshua Munn and James Bean. ² Desfosses further avers that he has entered the property in dispute once or twice a month during each summer since 1953 to check location markers and generally maintain the property. Desfosses and his father built a road to the property in 1956, which Desfosses has maintained and graded ever since and upon which he did extensive repair work in 1971 and 1973. In 1969 and ever year since, Desfosses has attempted to pay the property taxes on the mining claims. However since 1969 the Bannock County Treasurer has refused to accept these payments.

In 1971, P.G. & C., Inc. filed mining location notices on each of the six claims contained in the Lion Group Mining Claims. Desfosses also filed assessment work for the 1971 tax year. Desfosses states in his affidavit that he did erect a gate on the property. That gate was torn down in 1972, replaced by Desfosses and then torn down again two or three times the following year.

The district court granted the Pincocks' motion for summary judgment, and filed a memorandum and order in December, 1976. ³ The court did not specify on what grounds it granted its summary judgment. The appellants then brought this appeal. We reverse the order of the district court granting the summary judgment and remand this action for further proceedings.

It is well settled in Idaho that a trial judge should not grant a motion for summary judgment if the evidence, construed in the light most favorable to the party opposing the motion (here P.G. & C., Inc.) presents a genuine issue of material fact or shows that the respondent (the Pincocks) is not entitled to judgment as a matter of law. Pullin v. City of Kimberly, 100 Idaho 34, 592 P.2d 849 (1979); See I.R.C.P. 56(c). If either condition is satisfied, summary judgment was improper and must be reversed. Id. In our opinion the record in this case is replete with genuine issues of material fact and shows that the Pincocks are not entitled to a judgment as a matter of law.

We first focus on the facts surrounding the decree of distribution in the Eldredge estate which devised the Lion Group Mining Claims to the Pincocks. It is the Pincocks' contention that they hold title to this group of claims by virtue of that probate decree. Further, even if that degree does not vest title to the claims in the Pincocks, they argue that the probate decree is a written claim of title for purposes of adversely possessing the claims under I.C. §§ 5-207 and 5-208.

In the first instance, one of the most glaring deficiencies in the record is the absence of any showing whatsoever that the titleholder of the disputed property, P.G. & C., Ltd., ever transferred its interest in the property to Nathan Eldredge. Clearly, a will can only properly dispose of the property owned by the decedent at the time of his death. Stone v. Fisher, 65 Idaho 52, 139 P.2d 479 (1943). The record shows that at the time of Eldredge's death, the title to the property, now in dispute, was in the defunct P.G. & C., Ltd. Eldredge did own over one-half million shares of P.G. & C., Ltd. stock at the time of his death. However, the ownership of part of the stock of a corporation does not in and of itself evolve into ownership in fee of an asset belonging to that corporation so as to be distributable as part of an individual stockholder's estate. As a matter of law, the Pincocks were not entitled to a judgment quieting title to the property in them based solely on the probate decree.

The Pincocks in their brief point out that at the time of settling Eldredge's estate no one filed any competing claims on the disputed property. In addition, the probate court distributed the property to the Pincocks, and the time for appealing that distribution has since passed. The Pincocks conclude, relying on Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943), that the judgment of the probate court operates as res judicata to bar relitigation of the facts surrounding the inclusion of the disputed property in Eldredge's estate and therefore the validity of the Pincocks' title based on the decree of distribution. We disagree.

The Idaho Supreme Court based its holding in the Horn case on the ground that because the probate court had jurisdiction to order a certain manner of distribution and because the parties to the probate proceeding did not make a timely motion to set aside or modify the decree or fail to prosecute a direct appeal, the final decree of distribution became final and conclusive upon all parties to the probate court proceedings. Further, because statutory notice had been given all the world was charged with...