Arizona republican., 1909-10-08
TERR|TORYs ANSWER
 TO YuMks PETITION
THE TERRITORY CANNOT BE
 SUED.
1t Is Further Alleged That the Yuma
 Prison Has Not Been Abandoned.

A copy of the answer of the ter ritory, or rather of the board of con trol. to the injunction proceedings be- gun by the town of Yuma to prevent the removal of certain machinery and material from the old prison. was yes- terday received at the office of the board. from Attorney General Wright
 The answer first pleads to the jur- isdiction of the court and sets up the doctrine that the territory cannot be sued. Territorial and other officers are to be sued for their own official acts but it is contended in this case that the board of control is the terri tory in that it is carrying out the will of the territory as expressed by the legislature in providing for the prison at Florence. The immunity of the territory as a sovereignty. from pros ecution is sustained by several deci- sions and by one decision by the United States supreme court.
 Next comes a plea in abatement in which the first cause of action is at- tackled. It is denied. as alleged in the petition. that the prison at Yuma has been abandoned. 1t was not abandon ed by the act of the legislature and nothing therein was said about its abandonment. Though the board of control has power to abandon it. it has not vet done so. and as a matter of fact. some of the convicts are still there and will be there until the pris- on at Florence has been completed.
 Paragraph 293S of the revised stat utes of 1901 is, pleaded as a bar and limitation to the action begun for the recovery of the prison grounds: Any person who has a right of action for recovery of any lands. tenements or hereditaments, against another having peaceable and adverse possession thereof. cultivating. using and enjoy- ing the same. shall institute his suit therefor within ten years next. after his cause of action shall have accrued. and not afterward"
 The allegations of the petition with reference to the manner in which the grounds passed into the possession of the territory are met. It was stated in the petition that the government had issued patent to the property to A. J. Einlay as trustee. and that in NfN AD'S"Ahe year. loaD. finlaN con- Veyed the grounds to the board of prison commissioners. of whom he was' one. to be used as territorial prison grounds. on the condition that when the prison should cease to exist the property should revert to the town of Yuma
 This proviso of reversion is denied by the answer and it is alleged that In any event. it would be contrary to the act of 1875. providing for a terri torial prison, which directed the board or prison commissioners to purchase a prison site without such a limitation as the proviso fixes. The proviso is further declared to be void for if if had been recognized its tendency would have been to influence legisla- lures against prison removal
 The second cause of action relative to the removal of the machinery from the old prison is demurred to on the ground that the machinery and mate rial. described in the petition are not an integral part of the freehold. It IS frankly admitted. however. as the petition alleges. that they will be re- moved unless the board is restrained by an order of the court.