United States District Court, D. Arizona
Northern Improvement Company, et al., Plaintiffs/Counterdefendants,
United States of America, Defendant/Counterclaimant.
G. Campbell Senior United States District Judge.
Northern Improvement Company (“NIC”), Alfred Jay
Schritter, and Tomma Schritter filed this action against
Defendant the United States to quiet title to the sand and
gravel in two Arizona parcels pursuant to the Quiet Title
Act, 28 U.S.C. § 2409a (“the QTA”). Doc. 12.
Defendant has filed motions to dismiss for lack of subject
matter jurisdiction and for summary judgment, and Plaintiffs
have filed a cross-motion for summary judgment. Docs. 127,
134. The motions are fully briefed. Docs. 128, 135, 136, 138,
140. Pursuant to Rule 56(f), the Court will order further
briefing on the issues discussed below. See Fed. R.
Civ. P. 56(f)(1)-(3).
following is the undisputed history of the two parcels at
issue in this case, the Schritter Parcel and the NIC Parcel.
See Doc. 126.
The Schritter Parcel.
1923, Defendant patented the surface and mineral estates of
certain federal lands, including the Schritter Parcel, to
Burlington Northern Santa Fe Railway Co. (“Santa
Fe”).Id. at 1. In a 1950 warranty deed,
Santa Fe conveyed some of these lands, including the
Schritter Parcel, to George F. Getz Jr. Id. at 2.
This order will refer to this as the Getz Deed. The Getz Deed
included two provisions through which Santa Fe reserved the
mineral estate and certain rights in the property conveyed to
Getz. This order will refer to the first provision as the
Schritter Mineral Reservation and to the second provision as
the Schritter Railroad Reservation. See Id. at 2-3.
1988 warranty deed, a successor in interest to Getz conveyed
to Defendant various lands, including the same interest in
the Schritter Parcel that Getz acquired with the Getz Deed.
Id. at 3. This order will refer to this 1988 deed as
the West Wing Deed. The West Wing Deed excepted “all
oil, gas, coal and minerals, as reserved” in the Getz
October 2003 quitclaim deed, Santa Fe conveyed to the
Schritters its “right, title and interest, if any, in
and to decorative rock, sand, and gravel” in the
Schritter Parcel. Id. In a March 2004 quitclaim
deed, Santa Fe conveyed to the Schritters “all Santa
Fe's right, title and interest, if any” in the
Schritter Parcel. Id.
The NIC Parcel.
1924, Defendant patented its interest in certain federal
lands, including the NIC Parcel, to Santa Fe. Id. In a
1938 Indenture, Santa Fe conveyed these lands, including the
NIC Parcel, to Willie Wall, but reserved a mineral estate.
Id. at 4. This order will refer to this deed as the
Wall Deed. Like the Getz Deed, the Wall Deed included two
provisions through which Santa Fe reserved the mineral estate
and certain rights in the property conveyed to Wall. This
order will refer to these provisions as the NIC Mineral
Reservation and the NIC Railroad Reservation.
1988 West Wing Deed, a successor in interest to Wall conveyed
to Defendant the interest in the NIC Parcel that Wall
received through the Wall Deed. Id. at 5. The West
Wing Deed - like the Getz Deed for the Schritter Parcel -
excepted “all oil, gas, coal and minerals, as reserved
in” the Wall Deed with respect to the NIC Parcel.
2002, Santa Fe quitclaimed to Tri-R Construction, Inc.
(“Tri-R”) “all of Santa Fe Pacific Railroad
Company's right, title and interest, if any, in and to
sand, gravel and decorative rock located within 100 feet of
the surface” of land, including the NIC Parcel.
Id. at 5. Tri-R quitclaimed that same interest in
the NIC Parcel to NIC in 2004. Id.
parties agree that no relevant differences exist between the
NIC and Schritter Mineral Reservations, which this order will
refer to collectively as the Mineral Reservations.
Id. at 4. The parties also agree that no relevant
differences exist between the NIC and Schritter Railroad
Reservations, which the order will refer to collectively as
the Railroad Reservations. Id. at 5.
the parties agree that no material differences exist in the
language of the two deeds, the Court will refer only to the
Getz Deed language for purposes of this order. The Getz Deed
Mineral Reservation states:
Grantor expressly reserves and excepts all oil, gas, coal
and minerals whatsoever, already found or which may hereafter
be found, upon or under said lands, with the right to
prospect for, mine, and remove the same and to use so
much of the surface of said lands, as shall be necessary and
convenient for shafts, wells, tanks, pipe lines, rights of
way, railroad tracks, storage purposes and other and
different structures and purposes necessary and convenient
for the digging, drilling, and working of any mines or wells
which may be operated on said lands. Grantor or its
successors and assigns, will pay to Grantee, or it successors
or assigns of grantee, a fixed price per acre for the surface
of all lands appropriated under this exception and
reservation, which price shall be equal to the average price
per acre paid for all the lands above described, together
with the fair market value of the buildings and permanent