Superior Court Judge Tami Colston ordered a temporary restraining order barring the Georgia Department of Transportation from moving forward with the project before she hears evidence on the matter during a hearing scheduled for Thursday at 9 a.m.

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If enough evidence is presented to support claims by plaintiffs David Fowler Sr., Kirk Rickman, Deborah Rickman and David Fowler Jr., Colston could decide to continue the injunction while their lawsuit against the DOT is resolved.

The suit was filed June 30, alleging condemnations filed by the state erroneously reported the size of a right of way next to railroad tracks by the Desoto Avenue property owned by the Fowlers and the Rickman's. The condemnations, the suit states, “left a strip of land 25 feet in width which is owned by the plaintiffs but from which the plaintiffs have been now denied any lawful means of access.”

The DOT has been planning for several years to move the tracks south of their current path to accommodate the widening of Martha Berry Boulevard near John Davenport Drive. But construction never began, as David Fowler Jr. first challenged the project in U.S. District Court in January 2005, filing a lawsuit alleging the project would damage a Civil War earthwork fort on Desoto Hill.

Court records show that suit ended in favor of the Federal Highway Administration, giving DOT officials the opportunity to proceed. But before groundbreaking on the project could occur, Fowler filed his condemnation suit in superior court and won another opportunity to stop the work.

The new suit attacks the issue from a new direction, Fowler said, but it addresses the same problem the family has always had with the DOT project: historic preservation. “It started off that they were taking my land, and then I found out about the fort,” he said. “I figured all that out, and it became a preservation issue.”