I agree with the reasoning contained in the dissenting opinion of Mr. Justice Rabim herein, but I do not, however, believe that a remand of the case for further testimony with reference to going concern value is necessary in view of the voluminous record already made by the parties.
The important and basic finding by Special Term that the “ Hudson Tubes is a vital, essential and indispensable trans-Hudson commuter railway facility ” is amply supported by the record. No one contradicts this finding. In fact, PATH agrees that if this railroad were to cease operations, the remaining trans-ITudson vehicular facilities would not be able to handle the passenger load. The expert, Burpee, testifying for PATH, expressed the opinion that Hudson & Manhattan should be liquidated and, yet, he did say that the railroad “ has utility as an absolutely essential public service ’ ’.
How can we then speak of scrap value or liquidating value! This is not something which is of no further use. We can only speak of scrapping and liquidating when the enterprise has ceased to be of any service or need to anyone. But this is not so in the case at bar. One can readily visualize the reaction of the passengers and the public authorities if it were announced that the railroad was being discontinued. The simple fact is that no one has come forward with any suggestion of any sub*60stitute facility which could take its place and the record is completely silent on this subject.
I am mindful, of course, of the rule that ‘1 the question is what has the owner lost, not what has the taker gained”. (Boston Chamber of Commerce v. Boston, 217 U. S. 189, 195, cited in majority opinion.) But we are dealing with a most unusual situation. As Special Term said: “in the exceptional circumstances in this condemnation case, as conventional formulas are inappropriate they must yield”. In Boom Co. v. Patterson (98 U. S. 403, 408) the court said: “ So many and varied are the circumstance's to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule ”. Years later this same court, in United States v. Chandler-Dunbar Co. (229 U. S. 53, 77) approved the above quotation and also stated as follows: ‘ ‘ Although it is not proper to estimate land condemned for public purposes by the public necessities or its worth to the public for such purpose, it is proper to consider the fact that the property is so situated that it will probably be desired and available for such a purpose.” It can be readily agreed that if this existing facility were to be discontinued the public authorities, both of New Jersey and New York, would be hard put to provide substitute facilities. The truth is that they would have to continue the existing railroad even though they would have to dip into the public treasury to pay therefor. For, as was said by the court in Matter of City of New Yorh (5th Ave. Coach Lines) (18 N Y 2d 212, 218): ‘ ‘ However laudable the political motivation is in depriving claimants of their transportation system, they must be fully compensated therefor ”. And giving to this claimant scrap or liquidation value is not full compensation.
The majority also takes the position that, because the railroad is incapable of profitable operation, the allowance by Special Term for going concern value was unwarranted. I do not agree. The Court of Appeals, in 5th Ave. Coach Lines (supra, p. 223) said: 1 ‘ The argument made by the respondent that going concern value should not be allowed where the court found an inadequate plant, dwindling profits and poor future prospects was made long ago and rejected. [Citing authority.] ” I believe the amount awarded by Special Term, after its very thorough and painstaking consideration of this complex problem, is fair and equitable and fulfills the constitutional requirement of just compensation for what was taken.
I therefore vote to affirm.
*61Bkeitel, J. P., concur,s in the result in an opinion; Steuer, J., concurs in an opinion; Rabin and Capozzoli, JJ., each dissent in part in separate opinions.
Final decree, entered on June 13, 1966, modified, on the law and on the facts, so as to reduce the award to claimant-appellant-respondent Hudson Rapid Tubes Corporation for the railroad properties to the sum of $3,500,000 and to reduce the rate of interest on the applicable New Jersey portion of the properties to 4%, and, as so modified, the final decree is otherwise affirmed, without costs or disbursements to either of the parties.