Bisbee daily review., 1907-08-24
B|G LEGAL FIGHT |MMINENTOVER
 SUBWAY
E Erankenberg Brothers & New man Will Fighi Temporary InjunCtion-LookS as if City Has Everything to Lose,

Yesterday afternoon a temporary in. junction sued out by the city WIS served on the owners of the Fair store, Frankenberg Brothers & New man, restraining them from bulIuing an arch across the subway alley to connect the present building occupied by the dry goods firm, with the annex on the opposite side of the subway. which is now under course of con- struction. This step on the part of the city, promises to open up a hard fought legal battle. as the merchants claim that they are acting within their rights, while the municipal authorities claim that the subway is public high way.
 Several months ago there was cen siderable talk among the coupcilmen in regard to the taking over of the subway, but at that time the city fath- CTS made it an absolute condiuICn that the abutting property owners must first place the waterway in a permanent condition in accordance with the specifications lad down by the council. At that time in behalf of his clients, Frankenberg Brothers & Newman. Attorney Fred SutteT ap- peared before the city council and stated that his clients were desil pUs of constructing a building on the CD. posite side of the subway from their present location, and connecting the two buildings by an arch. He stated furtkIT that if the council intended taking over the subway his clients would give quit claim deed to the portion over which they intended to build as it was their own ground and they held a deed for it.
 After several meetings of the coIn- cil at each of which the subway qJes- tiUn was talked over from every con- ceiYable point of view three or four different times, Sutter served notice that his clients would commence con- struction and would join the buildings by an arch. In accordance with this plan, they have gone ahead, and now comes the injunction restraining them.
 The restraining order was issued on the ground that the subway is a pub lie highway and that none of the prop erty owners have any right to arch over it. It is claimed that the plats on file at Tombstone show that the waterway was dedicated to the city at the time of its incorporation.
 In opposition to the claim of the city Frankenberg Brothers & Newman claim that there deed entities them to ground running over the subway, and back to the extreme init oi their ne wbuilding.
 When the issue comes up Cn mo tion for a dissolution O gEe iujLHc- tion and it undOUbtedly will. it looks very much as i: tle muutcDll :meHOr- t'eS will be in a peculiar predcIment. If they win out when i. comes to p.dc- ing the subway in permanent .6ndi- tion. and taking care O. it In CGse the injunction sHou.d be made Eerma- nent, the entire burden of cleaning the subway after floods and keeping it in repair will fall on the city, where as in the past, the expense has been assessed to the various property own CTS along it's course. If the injunc- tion is made permanent the municipal ity is liable for accidents which hap pen upon it on account of lack of re- pairing or other defects, and other burdens which will make it an expen- sive proposition.
 When asked what action his clients would take in the matter, Attorney Fred Sutter said to a Review reporter last evening:
 We are perfectly willing to try the issue with the city, as we believe we are entirely within our rights in puttings an arch across the subway. On the other hand however, if the city is successful in having the in- junction made permanent, do not see what advantage can possibly be de rived, in view of the fact that it costs an enormous sum to keep this water way in repair, and this expense has. always fallen on the abutting prop erty owners. who will be reliveed of the burden if we are restrained, and it is adjudged that the subway is a public highway"