5Nov

Drilling Insight: Horizontal Drilling Under a Cemetery

Issue: Horizontal Drilling Under a Cemetery

Is there any legal authority which would prohibit an operator from conducting horizontal drilling operations underneath a tract of land that has been dedicated to cemetery or burial purposes?

Discussion:

Once property is dedicated to cemetery or burial purposes, there are several resulting restrictions placed on the use of the owner of that tract of land, some of which may impact oil and gas production operations.  No particular instrument or ceremony is required to dedicate a tract of land to cemetery purposes.  [1] Damon v. State, 52 S.W.2d 368, 370 (Tex. Comm’n App. 1932, holding approved); Davis v. May, 135 S.W.3d 747, 749 (Tex. App.-San Antonio 2003, pet. denied). Actual use of land for burial purposes is a sufficient dedication. [2] Damon, 52 S.W.2d at 370; Op. Tex. Att’y Gen. JC-0235 (2000).  The grantee of a burial lot in a deed of conveyance does not acquire a fee-simple title. [3] Oak Park Cemetery, Inc. v. Donaldson, 148 S.W.2d 994, 998 (Tex.Civ.App.—Galveston 1940, writ dism’d judgm’t cor.).  However, property once dedicated to cemetery purposes and in use as a burial ground for the dead may not be sold either voluntarily or through judicial proceedings in such a manner as to interfere with the uses and purposes to which it has been dedicated and devoted. [4] State v. Forest Lawn Lot Owners Ass’n, 152 Tex. 41, 254 S.W.2d 87 (Tex. 1953); Davis, 135 S.W.3d at 749.

When once dedicated to burial purposes, and interments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust. [5] Davis, 135 S.W.3d at 749; Houston Oil Co. of Tex. v. Williams, 57 S.W.2d 380, 385 (Tex. Civ. App. – Texarkana 1933, writ ref’d).  Those who purchase the property after it has been appropriated to burial purposes take it subject to the restriction that they may make no use of the cemetery premises that would result in destruction, desecration, or disturbance of the graves. [6] Davis, 135 S.W.3d at 749; Thompson v. Winkelmann, No. 01-06-00457-CV, 2008 WL 921041 (Tex.App.-Houston [1st Dist.] Apr. 3, 2008, no pet.).  The still-living owner of a burial right or cemetery lot may bring a suit in equity to prevent any of the above mentioned destructive measures. [7] Cochran v. Hill, 255 S.W. 768 (Tex. Civ. App. 1923); Michels v. Crouch, 15 S.W.2d 111 (Tex. Civ. App. 1941).  Additionally, the right of burial extends to all the descendants of the owner who devoted the property to burial purposes, and they may exercise it when the necessity arises. [8] Davis, 135 S.W.3d at 749.

Because an oil and gas lease is a conveyance of an interest in real property, an oil and gas lease itself must not interfere with the cemetery purposes. [9] Damon, 52 S.W.2d at 370; Cherokee Water Co. v. Forderhause, 641 S.W.2d 522 (Tex. 1982); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d (Tex. 2009). In Texas, the owner of a tract of land that contains a cemetery may not pass a leasehold estate inconsistent with, or that intrudes upon, the right of use as a graveyard. [10] Houston Oil Co. of Tex. v. Williams, 57 S.W.2d 380, 385 (Tex. App.-Texarkana 1933, writ ref’d).  This grave interest exists not alone in the surface of the ground, but below the surface of the ground where the graves are situated. [11] Id.

These principles have been applied to oil and gas Lessees in Texas.  For example, in one case, it was held that where land was conveyed to church trustees in a conveyance which recited that it was to be “used as a public cemetery,” persons having their dead buried there had the right to enjoin the issuing of a lease for oil and gas on the church property.  [12] Barker v. Hazel-Fain Oil Co., 219 S.W.874 (Tex. Civ. App. 1920, err ref.); see Cochran v. Hill, 255 S.W. 768 (Tex. Civ. App. 1923).  However, oil and gas leases covering a cemetery, so long as operations thereunder were confined to the land outside the enclosed cemetery and no desecration thereof occurred, are not illegal, immoral, or against any phase of public policy.  [13] Meadows v. Edwards, 116 S.W.2d 831 (Tex. Civ.App. 1938, writ ref.), see Williams, 57 S.W.2d at 380.  In Meadows, the court found in favor of a Lessee where there were producing oil wells that were 59 feet and 193 feet away from the corner of a cemetery, stating that “the evidence was conclusive that there has been no desecration of the graves. No oil has been allowed to mar them or the stones marking the graves.  No rubbish nor personal property has been allowed within the enclosure containing the graves.”  [14] Meadows, 116 S.W.2d at 834.  In another case, where a well had been drilled immediately outside the cemetery, the only issue was as to whether the actual drillsite was within the boundary of the cemetery. [15]  Jackson v. Cooper, 151 S.W.2d 951 (Tex. Civ. App. – Texarkana, 1941).

However, this framework only provides guidance as to horizontal drilling beneath a cemetery or burial tract, as there are no cases that directly address the point. The legal framework for oil and gas production in Texas were written under the assumption that wells be drilled vertically, and did not consider horizontal wells. [16] 2 Ernest E. Smith & Jacqueline L. Weaver, Texas Law Of Oil And Gas § 9.0 at 9-144 (2d ed. 2006).  The concerns associated with horizontal drilling in an urban area may be relevant to determining whether horizontal drilling will result in “destruction, desecration, or disturbance of the graves,” such as contaminated water, gas emissions, noise from operations, and increased traffic. [17] Billie Ann Maxwell, Note & Comment, Texas Tug of War: A Survey of Urban Drilling and the Issues an Operator Will Face, 4 Tex. J. Oil Gas & Energy L. 337 (2008–2009).  However, such concerns are not concerns that are associated only with drilling underneath a tract, and because (as described above) a drillsite surface location may be located immediately next to a cemetery, these concerns may not be controlling.

While a subsurface trespass into the burial plots would appear to come closer to a “disturbance of the graves,” existing case law provides little guidance.  The seminal case Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 (Tex. 2008) discussed the issue of subsurface trespass, stating that fractures associated with hydraulic fracturing, that stretch onto a neighboring tract of land, did not constitute an actionable trespass. [18] See Owen L. Anderson, Subsurface “Trespass”: A Man’s Subsurface is Not His Castle, 49 Washburn  L.J. 247, 281–82 (2010). However, the decision does not directly give guidance as to whether subsurface trespass to burial plots is a prohibited interference, because “[b]y using the rule of capture to preclude a claim for trespass, the court avoided directly answering whether hydraulic fracturing resulted in a claim for trespass.” [19] See Billie Ann Maxwell, Note & Comment, Texas Tug of War: A Survey of Urban Drilling and the Issues an Operator Will Face, 4 Tex. J. Oil Gas & Energy L. 337 (2008–2009).

Nonetheless, the Coastal decision does provide some guidance.  For example, the court noted that it is less willing to find a subsurface trespass, because the material facts are hidden below miles of rock, making it difficult to ascertain what might have happened.  Coastal, 268 S.W.3d at 16.  Additionally, the Coastal court recognized that, despite the hidden nature of subsurface operations, the vertical dimensions of a fracing pattern are confined by barriers, such as a shale, and other lithological changes above and below the reservoir. Id. at 7.  Therefore, it seems to be the case that courts tend to recognize that operations conducted 2 miles beneath the surface are somewhat segregated from the surface.  See id.

Because oil and gas are fugacious, the production of oil necessarily drains the surrounding land, which may, therefore, drain a neighboring tract. [20] 1 Ernest E. Smith & Jacqueline L. Weaver, Texas Law Of Oil And Gas § 1.1[A] at 1.2 (2d ed. 2006).  Because, as in Meadows, there is no prohibition to drilling and producing a well 59 feet from a cemetery tract, one could argue that the production of hydrocarbons from beneath a cemetery tract is not the type of “desecration or disturbance of the graves” that is prohibited.  [21] See Meadows, 116 S.W.2d at 834.

At least one court recognized, as a matter of policy, that graveyards must be subject to some change, for the benefit of the public purpose:

If every portion of ground which has been made a burial place for man should be devoted in perpetuity for burial uses, the most populous and cultivated districts of the world, where millions upon millions of the human race have sunk into the earth in the countless ages of the past, would have to be abandoned as a dwelling-place or means of support to the living inhabitants of the present day. [22] Damon, 52 S.W.2d at 370.

Therefore, while there is no case law directly on point, one may argue that, as long as horizontal drilling operations do not “desecrate” or “disturb” the graves, oil and gas companies would be free to horizontally drilling beneath a cemetery or burial plot.

Austin Brister
Austin represents oil and gas exploration and production companies and landowners in a wide variety of complex commercial litigation matters, including contract and property disputes, royalty disputes, breach of lease cases, lease termination/perpetuation disputes, and an array of other issues in the upstream oil and gas sector. Austin has prosecuted and defended claims in state courts and federal courts. Austin strives to find practical business solutions to complex issues, but if necessary, he works hard to implement effective strategies in the courthouse.
Austin Brister

Footnotes   [ + ]

2 comments


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  1. I would like to thank all those involved with these three articles for their professionalism and knowledge of each subject. I found the information provided to be very informative and educational.

    Many times while performing Mineral and Title research I have experience problems discovering the true mineral owners and their percentages of mineral ownership.

    Thank you
    David Hughes

  2. William Howard Pritchartt

    I am a vested interest royalty, overriding royalty and working interest owner in a producing oil field with the target productive zones of three oil bearing sands located directly beneath city cemetery in Natchez, MS. Surface production facility being on adjoining private lands wells directionally drilled to reach geological point most favored as probable and shown by structure map of oil sands.

© Copyright 2012-2018, McGinnis Lochridge LLP. All Rights Reserved. DISCLAIMER: The information in this article is for general information purposes only. This article should not be substituted for legal advice and should not be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or reading this article does not constitute, an attorney-client relationship. You are encouraged to contact an attorney for legal advice concerning the information provided in this article.
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