¶1(Dissenting). The majority opinion seems to admit that the basis for equity jurisdiction in the case at bar is our holding in Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65; but the majority opinion attempts to distinguish the case at bar from that case, by saying that prohibition cannot be used as a substitute for appeal.
¶2That statement—that prohibition cannot be used as a substitute for appeal—is good law when, and only when, appeal will provide an adequate remedy. In Faver v. Golden, 216 Ark. 792, 227 S. W. 2d 453, this Court, in issuing a writ of prohibition, said:
“Issuance of the writ depends on the inadequacy, rather than the absence, of the remedy by appeal. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59. Hence, we have held that the great expense of money and length of time required in an election contest render the remedy by appeal inadequate as to petitioners. Murphy v. Trimble, Judge, 200 Ark. 1173, 143 S. W. 2d 534.”
¶3In the case at bar appeal is not an adequate remedy: in fact, it is no remedy at all. Preliminary to the trial on the value of the property in controversy, the Circuit Court has made an order of entry (pursuant to Sec. 35-902, Ark. Stats.), by the terms of which the city can enter and take the property upon depositing $400.00 in the registry of the Court. The execution of that order of entry is what the majority is refusing to prohibit. The majority is thus allowing the city to enter the property and convert it into a street.
¶4After the Circuit Court jury shall have finally fixed the value of the property so taken, the majority says the property holder can then appeal and have this Court determine whether the property holder’s motion, to transfer to equity, should have been granted. Allegations, similar to those here made, were held sufficient for equity jurisdiction in Burton v. Ward (supra). So if we follow that case, we will finally determine that this case should have been transferred to equity, in which forum the landowner could have introduced his evidence to support his allegations that the taking was arbitrary, capricious, etc.
¶5But what of the condition of the landowner’s property at the time we finally determine such appeal? The property will have been used as a street for many months; and the restoration of the property to a lawn, or orchard or similar use, will be practically impossible. So theoretically the “remedy by appeal’’ sounds nice: but practically, it is not adequate in a case like this one, wherein the taking of the property cannot be superseded pending the determination of the appeal.
¶6Therefore, I think we should grant the writ of prohibition, in accordance with our holding in Burton v. Ward (supra). Mr. Justice Ward joins with me in the views herein expressed.