In rural Oklahoma, when running title on specific tracts near a town or townsite, an examiner may run into an issue of a warranty deed, without reservation, given to a cemetery. Subsequent to that conveyance, the owner of the cemetery may convey out individual lots in the cemetery via warranty deeds, without reservation. On first glance, it appears that the owner of the cemetery tract just conveyed individual cemetery lots including the minerals, but Oklahoma caselaw has stood the test of time in providing an answer to this macabre question: can Oklahoma graves contain mineral rights? An overwhelming sigh of relief to all title examiners can be had due to the general rule that in Oklahoma, regardless of the wording of the deed or instrument of conveyance, the owner of an individual cemetery lot, does not receive fee simple title or the mineral rights. Heiligman v. Chambers states that,
“[w]hen a family burial plot is established, it creates an easement against the fee . . . in favor of the person creating and establishing the burial plot and the right inherent in such person descends to his heirs. The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority.”[1]
Therefore, when coming across a conveyance from a cemetery to an individual lot owner, the lot owner’s title is comparable to an easement or license to use the property.
But, there still is some question as how to treat the mineral rights underlying the cemetery, and how oil and gas operations can proceed when a cemetery is included in a drilling and spacing unit as established by the Oklahoma Corporation Commission. Actual ownership of the mineral rights underlying and within a cemetery would depend on the language and structure of the granting clause within the deed conveying such interest to the operator of the cemetery. If the land creating the cemetery was acquired by an Oklahoma condemnation action, the pleadings should be examined thoroughly to determine who owns the mineral rights within. If the land was acquired by a deed conveying the full fee estate, then the operator of the cemetery would own the minerals. If the cemetery tract was granted due to a statutory plat dedication, the public at large would own the mineral interest, and therefore an oil and gas lease would need to be secured from the applicable governmental entity. If the cemetery tract was dedicated by common-law, only the dedicator would need to execute the oil and gas lease covering the mineral rights within the cemetery.[2] Regardless of who or what entity owns the minerals underlying a cemetery, it has been held to be against public policy to permit parties to drill for oil and gas in a cemetery.[3]
When in doubt if a determination of title is left in a cemetery in Oklahoma, or how to proceed with oil and gas operations involving a cemetery, an experienced oil and gas attorney can assist all parties interested and involved. If there are any other topics/issues you would like to discuss with the energy community, or myself, please mention your ideas and thoughts in the comment section or email me at volino@hampton-milligan.com.
[1] Heiligman v. Chambers, 338 P.2d 144, (Okla. 1959).
[2] Langston City v. Gustin, 127 P.2d 197 (Okla. 1942).
[3] Boggs v. McCasland, 244 P. 768 (Okla. 1926).
Jordan D. Volino is an attorney at Hampton and Milligan practicing in Oklahoma City, Oklahoma, who specializes in mineral title examination, oil and gas law, property law, as well as federal and Indian title and leasing. Jordan is a member of the Oklahoma Bar Association and the Oklahoma City Association of Professional Landmen. Jordan also is a published scholar, national champion in energy negotiations, and frequently lectures over Oklahoma oil and gas matters.
Adjunct Professor J. David Hampton joined the College of Law faculty in 2008 and the Price College of Business faculty in 2015. Professor Hampton teaches Mineral Title Examination and Real Property Law. After graduating from the University of Oklahoma College of Law in 1980, he founded Hampton and Milligan, a 30-year-old Oklahoma City law firm specializing in oil and gas law title examination, oil and gas litigation, environmental law, and real estate title examination. Currently, Professor Hampton is a lecturer for the American Association of Professional Landmen, as well as the Oklahoma City Association of Professional Landmen.
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