The trial court has found as a fact the reasonable rental value at the time of the apartment in question, and there is evidence to sustain the finding. Two witnesses of large experience in the real estate'field, and both of whom were particularly familiar with the property in question, one having been in charge of the collection of rents and management of this particular property for three years under a prior owner of record, and the other having managed the property directly across the street, testified for the plaintiff, and both dearly distinguished between a fair market rental value as of the present time for these premises and a value at the same time due to the shortage of housing on account of the war conditions. Mr. Joseph Nassoit in fixing the rental value of these premises at twenty-eight dollars a room, testified: “ I consider this is the fair and reasonable value, what the apartments will bring is according to supply and demand, in poor times they have to take less, in good times they can get more, but these figures I figured on what the apartments are worth reasonably. Q. Regardless of the housing emergency we have now? A. I didn’t take that into consideration, if I had I would have made them much ’higher.” Mr. James E. Taylor, the other witness, testified that the fair market value was thirty-five dollars a room: “ Q. Seven times thirty-five dollars would be two hundred forty-five dollars; he is now paying one hundred . thirty-five; you think according to your judgment that he ought to pay two hundred forty-five dollars a *660month? A. I was asked what I considered a fair market value of the property to-day, not asked what any tenant ought to pay.” One expert thus gave the reasonable market value at the time the property was affected by the public use at one hundred and ninety-six dollars a month and the other at two hundred and forty-five dollars and the court fixed it at one hundred and eighty dollars.
It is thus seen that the court adopted what it is submitted is the true rule which should be adopted in fixing such rental value, namely, a reasonable return upon the fair market value of the property as of the time when such property is affected with the public use. This is the rule which has been applied to many different classes of property when such property has become permanently affected with a public use (Willcox v. Consolidated Gas Co., 212 U. S. 19; Smyth v. Ames, 169 id. 466; People ex rel. Kings County L. Co. v. Willcox, 210 N. Y. 479; Minnesota Rate Cases, 230 U. S. 352), and there would seem to be no- distinction between such a case and where private property has only been temporarily instead of permanently affected with such use, as in the case at bar.
The trial court reached its conclusion with the help of the testimony of expert witnesses, which is one method of arriving at the result. A majority of this court has set aside the finding of. the trial court and has reached its conclusion by making a finding as to the value of the land and building taken together and basing a return upon this. If this is to be the basis then the authorities hold that the building should be valued separately from the land at the cost of construction at the time the rental is to be fixed less accrued depreciation and the value so found should be added to the value of the land. Smyth v. Ames, 169 U. S. 466; People ex rel. Kings County L. Co. v. Will-*661cox, 210 N. Y. 479. There is no evidence in this record showing said separate value of the building at such time.
For these reasons I am constrained to differ from the result reached by my colleagues^, and vote to affirm.
Judgment modified, and as so modified affirmed.