Russell v. Berry , 70 Ark. 317 ( 1902 )

Riddick, J.,

(after stating the facts.) The only question in this case is whether coal which underlies land of a homestead is a part of the homestead. It is admitted that the value of this homestead is not over $2,500, and if this stratum of coal which underlies the homestead land is a part of the homestead, it follows that it cannot be reached by the administrator or creditors until after the expiration of a homestead estate. Our state constitution provides that if the owner of a homestead die, leaving a widow, “the rents and profits thereof shall vest in her during her natural life,” provided that if the owner leaves children, they “shall share with the widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age.” Const. 1874, art. 9, § 6.

Now, it has been correctly stated that the term profits “comprehends the produce of the soil, whether it arises above or below the surface; as herbage, wood, turf, coal, minerals, stones; also fish in a pond or running water.” Bouv. Law Diet. Therefore, if the owner of the land in fee grant to another the rents and profits of such land, to have and to hold the same to him and his heirs, the whole land passes by the grant; “for what,” asks Sir Edward Coke, “is the land but the profits thereof?” Coke, Littleton, 4b; Bapalje & Lawrence, Diet. Land has an indefinite extent, both, upward and downward, and includes not only the surface of the earth, but everything beneath it. 2 Blackstone, Comm. 18. As the constitution gives to the widow and children the rents and profits of the homestead, this, in effect, gives them the use of the whole land. Conceding, then, the contention of counsel for appellant, that this coal is a part of the land itself, yet, as all of the land is included in the homestead estate, the probate court cannot order the land, or any part of it, sold until the homestead rights of the widow and children have terminated. Stayton v. Halpern, 50 Ark. 329. Whether the widow and children have the right to mine and sell the coal is a different question, which we do not decide.

Our conclusion is that this stratum of coal, which the administrator is endeavoring to have subjected to the debts of the estate, is a part of the homestead, and is protected from sale to the same extent that the homestead is protected. It follows that, in our opinion, the judgment of the circuit court is right, and it is therefore affirmed.