I concur in the result but only with great reluctance, constrained as I am by the present authorities.
I am satisfied that no precedent in this State has expressly allowed a recovery in eminent domain on value to the taker and that the authorities state the contrary. The Matter of City of New York (5th Ave. Coach Lines) case (18 N Y 2d 212) did give some recognition to such value. It allowed going concern value, thus recognizing that the assets taken had associated with them a selection, organization, and operating system of things and human beings which the taker desired and needed. The question, however, was somewhat obscured by the fact in that case, not present here, that a profitable return had been prevented by the prior conduct of the taker.
The essential fact in this case is that all parties agree that, so long as the tubes are capable of moving passengers across the Hudson River, they will be so used in order to avoid the expense of the addition of new and substitute facilities to . accomplish the same end. To that extent there is value to the-*51taker and, indeed, that may be the only reason for the taking. There is an obvious ceiling to the value that anyone interested in using the tubes would place upon them. That ceiling is the cost of providing transportation in substitution to that available through the tubes. As to this, no proof was offered by any party in this proceeding.
There is no point to a burdensome elaboration of the economic principles involved. But it is worth noting that those principles have received recognition in situations that compelled acceptance of the obvious economic fact that an asset that has value to anyone (that is, for which there is a demand) is an asset for the taking of which the owner is entitled to “ just compensation General market value, as has been noted so many times, is not the only basis for determining value. It is only the best way. Hence, the problem is oversimplified if it is concluded that value to the taker in eminent domain is no index to market value (4 Nichols, Eminent Domain, § 12.2, pp. 41, 47; United States v. Certain Property, etc., 306 F. 2d 439, 447 [C. A. 2d, Friendly, C. J.]; see, also, Matter of Huie, 2 N Y 2d 168, 171. Compare United States v. Cors, 337 U. S. 325, 332, 333, in which it is explicitly stated that market value, when available, is not identical with just compensation and in which there is also a statement of the traditional preclusion of value to the taker). In other States, several cases have arisen involving the condemnation in eminent domain of public utilities that had become unprofitable and with no economic prospect of being made profitable. To that extent, the economic problem is the same as that in this case. The courts, in these rare cases, held that under such circumstances the value to the taker was to be considered and, as a facet of that value, the cost of necessary substitute facilities (e.g., Re City of Eureka, 19 Cal. R. C. D. 952, 957-958; Matter of City of Oroville, P. U. R. 1922 E 451, 469-471; but, see, 1 Bonbright, Valuation of Property 442-443).
Some of the leading authorities have also referred to the problem presented by hopelessly unprofitable enterprises which nevertheless have a value in their continuance by government in order to avoid greater expense in the substitution of new or different facilities (2 Orgel, Valuation Under Eminent Domain, § 217; 1 Bonbright, op. cit., supra, 442-443).
On no view of the matter should the question be confused with the replacement of substantially similar facilities. Of course, no one would duplicate the existing tubes. Nor is it disputed that substitute facilities of a different character would have to be supplied if the tubes are not used at all for the *52movement of passengers. Those substitutes might consist of additional tubes to the existing tunnels, the addition of lanes to the existing bridge across the Hudson, or whatever the ingenuity of man might suggest to transport those who would otherwise have used the tubes. One thing is clear: there would be some cost or expense involved in moving the additional passengers over existing or substitute facilities. In this connection, one does not have to speculate as to whether government would make the moves necessary to utilize the tubes or to provide a substitute facility. Recent history and the circumstances of this case demonstrate that such action has occurred.