Cox Broadcasting Corp. v. Department of Transportation

Marshall, Chief Justice. The Court of Appeals upheld appellee DOT’s declaration of taking of land underneath some supporting guywires of WSB’s transmission tower, for the construction of the proposed “Presidential Parkway.” Cox Communications v. Dept. of Transp., 178 Ga. App. 499 (343 SE2d 765) (1986). In reversing, we held: The transfer of Cox’s property to the Department must be [813] set aside unless or until the Department has become bound to implement a plan of construction that will provide adequate protection against falling ice. Decided January 19, 1989. Troutman, Sanders, Lockerman & Ashmore, J. Kirk Quillian, Donald W. Janney, for appellant. Michael J. Bowers, Attorney General, Beryl H. Weiner, Thomas C. Dempsey, for appellee. Cox Communications v. Dept. of Transp., 256 Ga. 455 (4) (349 SE2d 450) (1986). Upon remand, the trial court signed the remittitur without the hearing requested by both parties to determine the appropriate order for the judgment and how the trial court was to receive the plan of construction. Cox then filed a renewed petition, seeking: (1) a judgment setting aside the declaration of taking and dismissing this action with prejudice; (2) an injunction prohibiting DOT from entering onto and taking possession of Cox’s property for construction of the roadway; and (3) attorney fees and costs of defending this action. DOT filed a plan of construction and a supporting affidavit of Commissioner Hal Rives. The trial court conducted a hearing, after which it denied Cox’s renewed petition and ordered DOT to present within 60 days a complete, implementable plan of construction that will provide adequate protection to the traveling public from falling ice from the tower. Cox appeals this order. The DOT filed a plan purporting to comport with this order after the filing of the notice of appeal in this case. Held: The case is remanded to the trial court for a hearing on the adequacy of the plan of construction ordered by the trial court and allegedly on file in the trial court. Remanded with direction. All the Justices concur.