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Письмо Управляющего подворьями ППО В.К. Антипова адвокату Абкариусу по поводу участка Биркет-Мамила[1]

6 октября 1927 года

№ 501

23 сентября/6 октября 1927 г.

Dear Mr. Abcarius,

Upon my letter of 26 March 1926 with enclosure of a note on our plot of ground by Birket Mamilla you have already studied the matter of preventing our neighbours from passing through our land to the King George Avenue, discussed the same with Mr. Eliash, and advised us for safeguard of our possessory rights to build there a wall on wet laying in order to prosecute afterwards individuals who would destroy the name.

In summer 1926 we built the wall in accordance with your advice, but in August 1927 there was seen a small destruction of the North end of the said wall about 70 cms. wide by which Mr. Melamede residing in the house, formerly belonging to Mr. Shiber, passes through our plot of ground to the King George Avenue. I explained to Mr. Melamede we could not allow him such a use of our land and asked him not to pass through the same and not to destroy our wall, which I had to repair.

Mr. Melamede applied to the Government Administrator of Russian Properties with an application herewith enclosed in which he suggested a sort of agreement between him and the Direction on the right to passage through our land. This application was sent to me by the Government Administrator for reply. The matter was reported by me to the Direction whereat I pointed out:

1., Whatever agreement we may make with Mr. Melamede with reference to his right to passage through our plot of ground, practically it would be difficult for the Direction to prevent the public from using our land for the same purpose. Should we allow to Mr. Melamede to pass through the said land we could hardly prevent other people from the same. The agreement will provide for the right to passage only for Mr. Melamede but in reality other people with whom we did not make any agreement will enjoy the same right. In this way a series of precedents will be created of our allowing the public to pass through the land in question.

2., The danger in this respect in quite clear, Mr. Melamede himself in spite of our continual protests against such kind of dealing on the part of our neighbours in his very application to H. E. Mr. KeithRoach refers already to the precedents of passage through our plot of ground by Mr. Abady and Cornfeld.

3., Our consent to make an agreement with Mr. Melamede on the right of passage through our land shall certainly call forth a necessity to make similar agreements with other our neighbours. The existence of half a dozen of such contracts practically will render our land open to the public passage and shall afterwards be interpreted by the interested people as a concession of the land on the part of the Society for the public passage, and it, is hardly to be denied, will create us in future many complications.

4., Closely to our plot of ground there is another one which is not built up too, and the all of  which of dry laying is destroyed in many places, but our neighbors prefer to destroy our wall on wet laying and to pass through our land.

5., Before the Avenue of King George was built our neighbors used the roads behind their houses for coming out to the Jaffa road. The same roads they can use now too.

6., The considerations of Mr. Melamede on losses in connection with changing his lodgings does not concern the Direction; at any rate it was not the Direction but the proprietor of the house who led into error his tenant as to his right to use our property for passing to the said house, so more that the aforesaid proprietor could hardly ignore our protests against such an encroachment of our property, which question has now two years history.

7., But, on the other hand safeguard of our possessory rights in usual legal way shows so great difficulties that a question arises whether an amiable agreement, if any is possible without endangering the said our rights would be preferable? In the first place there should be pointed out that in order to persecute an individual for destroying our walls sufficient proves should be submitted to the court in this respect. Our tenant is engaged upon the contract to watch over the integrity of the boundaries. But as the experience proved in this case it is useless. He saw an individual destroying the wall, but the malefactor refused naturally to name himself to our tenant and disappeared. Our applying to the police is no more useful. In 1925 I personally detained an individual stealing our earth on the plot of ground by Damascus Gate but on my applying the policeman to help me to bring the thief to the next police station, the said policeman referred me to the police station by Damascus Gate where I was told I had to apply the police station by Jaffa Gate and when I got a police man from the said station and came to the spot of theft, the thief disappeared. Now, in order to detain the malefactors we have to keep on the very plot of ground a guard; which measure may be not sufficient too for bringing the said malefactors to the police station seeing that they could be more than one.

Moreover we have to construct a hut for watchman. And all this may prove to be useless too, because our neighbors certainly would not charge themselves with the destruction of the wall but will leave the same to people who even to not live near our plot of ground and may easily to be hid.

Under these circumstances I ventured to submit to the Direction a suggestion of an agreement with our neighbors providing for a lease to each of the said neighbors of a respective part of our plot of ground in front of their houses in usually way, for instance, for a vegetable garden, where at the tenants would make barbed wire fences across our land and we would put doors in our wall for the term of the contract of lease. In this way the admission into our plot of ground would be left only to our tenants and people coming to them and not for public passage. The plan of the land in question has been enclosed with my above mentioned letter to you under № 94.

This my suggestion I ventured to submit to the Direction upon examining the respective importance for our case of articles 5, 6, 7, 10, 13, 27, 33, 37, 41, 42, 43, 45, 51, 142, 166, 1048, 1218, 1224 and 1226 of the Turkish Civil Code.

After having examined the aforesaid my report the Direction decided to ask for your counsel in writing on all matters touched in my report in order to clear up there is any danger for our possessory rights in our making an agreement on the above mentioned ground, and point out those dispositions of the law upon which your counsel will be based.

I, therefore, should be very much obliged if you could at your earliest convenience give me your counsel in writing on the said matter.

Yours very truly

Antipov

Representative of the Orthodox

Palestine Society  

ISA. Д. 840/9-פ. Пагинация отсутствует. Машинописная копия. Помета красным карандашом: «Дело № 9e».

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