not be restated except where necessary for clarity of discussion. All points referred to are in Tennessee unless otherwise stated.

The portion of the line sought to be abandoned lies between Fayetteville and Lewisburg, and serves the intermediate points of Howell, Petersburg, Talley, and Belfast. It was acquired by applicant as a result of a merger with the Nashville, Chattanooga and St. Louis Railway approved in Louisville & N.R. Co. Merger, 295 I.C.C. 457. Lewisburg, the principal station on the branch, is also served by applicant's main line, and Fayetteville, another industrial city on the route, will continue to be served by the portion of the branch which is to remain in operation, but no direct service between the two stations will be offered.

At the hearing, as a result of evidence regarding the potential industrial use of the territory east of Lewisburg, it was stipulated that applicant would retain 5 miles of track east of Lewisburg in lieu of 2.88 miles as specified in the application. It was further revealed, that the territory within one-half mile of the track between milepost 40 and 43 west of Fayetteville was recently purchased for industrial development and that the right-of-way commencing at milepost 43, which aproximately corresponds to valuation station 2042 plus 81, the point of commencement of the abandonment west of Fayetteville, and extending to milepost 40 was offered to a developing syndicate at its salvage value. Applicant agreed to have any authority granted herein conditioned upon the offer of such trackage to the syndicate at its salvage value. Our certificate herein will be made subject to such a condition.

The examiner found that little use was being made of the line, and, except as stated, there is no expectation of a substantial increase of traffic; that in view of the substitute transportation available, the savings to be realized upon abandonment, and the minimal inconvenience to the shipping public, the present and future public convenience and necessity permit the abandonment of the trackage subject to the stipulations as to that trackage to be retained.

On exceptions protestants contend (1) that rerouting of overhead traffic over other lines of applicant was intentionally done to cause losses to be shown on the line, (2) that the losses so shown do not indicate that continued operation of the line would be a burden on interstate commerce, (3) that repairs necessary on the line are a result of applicant's negligent maintenance and should not be considered a basis for abandonment, (4) that the abandonment will result in dire consequences to small businesses located along the line, and (5) that the record clearly shows that continued operations of the line is necessary for civil defense purposes. In reply applicant asserts that the

findings of the examiner are amply supported by the facts and the applicable law and should be approved.

Results of operations of the line in question based upon the operations as presently conducted, i.e. no overhead traffic transported on the line, for the years 1957, 1958, and 1959 show net losses of $68,054, $54,148, and $48,042. Until September 1958, overhead traffic was handled over the line in question. Applicant relies upon Southern Ry. Co. Abandonment, 228 I.C.C. 59; and Louisville, H. & St. L. Ry. Co. Abandonment, 244 I.C.C. 693, in which the Commission disregarded overhead traffic in determining branch losses where such traffic could be handled as economically on alternative routes of the respective applicants, for not including such figures in its operating results. However, in the case at hand, only an unrealistic view of traffic studies made by applicant, which showed higher costs for the substituted route for that portion of the movement to or from Lewisburg, from and to Chattanooga and beyond, would support the contention that the use of alternative routes would prove as economical for overhead traffic as the one in question. The examiner estimated the amount of revenue applicable to the line from such traffic and arrived at adjusted operating losses for 1957 and 1958 of $50,670 and $25,566, respectively. The record did not provide the basic information necessary for similar adjustments of the 1959 figure, but, upon the assumption that the amount of overhead traffic handled in 1959 would be similar to that of the preceding year, the adjusted net loss for 1959 was set at approximately $19,000. For the purposes of this proceeding we will use the adjusted figures in order to determine the effect of operations upon interstate commerce.

It was estimated that the present condition of the line requires expenditures of approximately $25,000 a year for a 5-year period in order to install heavier rails and fastenings to continue its operation. Protestants contend that these expenditures are necessitated by the negligence of applicant in failing to provide improvements and systematic repairs to the line in the past; and therefore these expenses should not be considered in this proceeding. It must be noted however, that the line was not constructed by applicant but was acquired as a result of the aforementioned merger. Applicant had no control over the construction of the line, and no showing was made wherein it can be found that during the short period of exclusive control of the line by applicant it was negligent in its maintenance or willful in refraining to rehabilitate its facilities, particularly in view of the small volume of traffic moving over the line.

Shippers located at Lewisburg and Fayetteville are the primary users of the line. Although some shipments moving to those cities will travel greater distances if the line is abandoned, only in a few

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cases will such rerouting cause a delay of 1 day when compared to the service rendered prior to the discontinuance of overhead traffic on the line. Furthermore, it does not appear that consignors will be unduly inconvenienced by such delay.

If the line is abandoned, the communities of Belfast, Talley, Petersburg, and Howell will be without rail service. No evidence was presented by members of the communities of Howell and Talley. An operator of a mill in Belfast who received 15 carloads of feed materials in 1959 and 81⁄2 carloads during the first 6 months of 1960 appeared in opposition. He feared the increased cost of using motorcarrier service in substitution for the current rail service although he had no idea of the comparative rates for the commodities he receives. He currently receives the majority of his products by motor vehicle and admitted that motor rates on some commodities are lower than rail. In addition, the vice president and cashier of the local bank testified as to the possible adverse effect of the abandonment on the future industrial growth of the town.

The mayor of Petersburg, the principal of Petersburg High School, and the operator of a department and furniture store opposed the application because the loss of rail facilities would undoubtedly be a hindrance to future industrial development of their community. In this respect, the town of Petersburg has taken no action to attract industry, nor has any new industry located therein during the past 10 years. Four shippers from Petersburg also appeared to protest because of the effect the proposed abandonment would have on their individual business. Only one of such shippers, the operator of a general store, retail gas station, and coalyard makes substantial use of the line. He received 13 carloads of coal in 1959. Each shipper expressed dissatisfaction with the necessity of having to arrange for transportation of shipments a distance of 13 miles from Fayetteville, the only station in their vicinity which will retain rail service in the event the application is granted.

Three shippers and a former county judge of Marshall County from Lewisburg appeared in opposition to the abandonment. Although Lewisburg will continue to be served by applicant over its main line, 1 day's delay will be experienced on shipments originating west of Chattanooga. The shippers only related one instance when such delay proved detrimental to their operations, although traffic has been routed over the main line in lieu of the branch in question since September 1958. In addition, each feared that the loss of some of its direct rail service would curtail further development of the city.

An operator of a building supply company in Fayetteville opposed the application because of the resulting circuitous route which ship

ments from the Birmingham, Ala., area would take to arrive at his establishment. Although traffic from Birmingham is already moving to Nashville, thence through Decherd to Fayetteville, abandonment of the branch in question would prevent the use of the direct route to Fayetteville under all circumstances. The protestant did not show that the routing of traffic from Birmingham through Nashville and Decherd had or would be likely to have an adverse effect on his business. Shipments from Chattanooga and points beyond will continue to move as before.

A civil defense official outlined the contemplated use to be made of the line in the event of an emergency necessitating the use of the area served by the line as an evacuation center. In addition, it is planned to use the line in question as an alternative route for necessary transportation in the event the main line is destroyed.

Both Lewisburg and Fayetteville will continue to have rail service available. The sole consequence of the abandonment to the respective communities would be, in the case of Lewisburg, a 1 day delay in certain shipments, and in the case of Fayetteville, the loss of a direct route from the Birmingham area. The primary objection to the abandonment seems to be the fear that loss of some service will make the affected cities less desirable for future development; however, the business interests and the communities of Fayetteville and Lewisburg cannot justly demand continuance of the service in issue when the area has insufficient traffic to support the facility, especially in view of the fact that adequate rail transportation will continue to be offered. Loss and inconvenience accruing to the public must be weighed against the burden and retarding effect of continued operation upon applicant and interstate commerce. Upon analysis of the pertinent facts, we find that the losses suffered on the branch far outweigh the inconvenience of the loss of some service to the affected cities. Those intermediate points which are to lose their rail service entirely will be more severely affected; but the small amount of traffic originating at or destined to these points does not warrant retaining a service which is suffering continuing loss of the magnitude involved herein. Each of the shippers already receives a portion of his freight by motor vehicle and suffers no hardship therefrom. The substitution of motor transportation for the small amount of freight now being transported by rail certainly should not result in consequences of greater extent than those now being realized by applicant. Although we are not unmindful of the needs of the civil defense organization, for transportation in the case of emergency, a carrier cannot be expected to continue operations indefinitely at a loss for matters which are essentially within the province of the civil defense and military departments.

Protestants as a basis for their protests cite the possibility of higher freight rates for those commodities whose tariffs are based on mileage, owing to the circuitous routes which shipments from certain points will have to travel. While increases in rates resulting from an abandonment must be considered, applicant should not be required to operate a segment of trackage at a loss to insure lower rates to affected shippers. Chicago & N.W. Ry. Co. Abandonment, 295 I.C.C. 31; St. Louis S.W. Ry. Co. of Texas Abandonment, 290 I.C.C. 53.

Further exception is taken to the stipulations made at the hearing pertaining to the retention of switching service on one portion of the line, and the sale of another portion, because of pending industrial development. Both stipulations were made upon the advice of officials of the railroad, and no evidence appears that they were made to placate opposition to the proposed abandonment. The record shows that the parties interested in the tracts near the segments of track in question are taking action to establish industrial centers which must of necessity have rail transportation. Furthermore, action by applicant in regard to such trackage will in no way prejudice the interest of the protestants herein.

Exceptions and requested findings not specifically discussed herein have been considered and found to be without merit or without material significance.

Subject to the conditions for the protection of employees referred to, we find that the present and future public convenience and necessity permit abandonment by the Louisville and Nashville Railroad Company of that segment of its line of railroad known as the Lewisburg branch extending from milepost 40 near Fayetteville to a point 5 miles east of Lewisburg in Lincoln and Marshall Counties, Tenn., and that the application should be denied in all other respects.

An appropriate certificate will be issued, effective 35 days from the date of service hereof, in which suitable provisions will be made for the cancellation of tariffs and the submission of journal entries.

312 I.C.C.