dissents in part and concurs in part in the following memorandum. Kane, J. (dissenting in part and concurring in part). Assessments in the Town of Cazenovia are measured on the basis of 100% of value. Both parties stipulate that the reproduction cost for the 4.62 miles of pipeline in question would be $1,800,000. The record demonstrates that its original cost in 1951 was $380,000 and that there have been no added capital costs in the Town of Cazenovia. The question to be resolved in this proceeding is to determine the fair market value of petitioner’s real property as of May 1, 1981.
The definition of market value, accepted by the American Institute of Real Estate Appraisers and Society of Real Estate Appraisers, is “[t]he most probable price in terms of .money which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, *515each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus”. In no case shall an assessment exceed that value (NY Const, art XVI, § 2; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1).
The within controversy is, essentially, a disagreement as to the method of determining that value when a petitioner’s earning ability is subject to the jurisdiction and control of the Federal Energy Regulatory Commission (FERC). A complicated appraisal problem is presented. This is best evidenced by the fact that petitioner’s expert was of the opinion that the market value of the property was $95,100, while the town’s expert arrived at a value of $1,620,000. The assessors have assessed the property at $715,800, following closely an advisory valuation by the State Board of Equalization and Assessment.
It is my view that the appraisal method adopted by petitioner is the proper one and that the trial court erred in not accepting the methodology applied by petitioner’s expert. First, the use of the unit rule should not have been rejected. In determining value, the entire operating system must be evaluated in order to arrive at a valid appraisal for any portion of the whole. The 4.62 miles of line in the Town of Cazenovia, unconnected to the rest of the system, would have little, if any, value of its own. Second, it was improper to accept a valuation based upon reproduction cost less depreciation without factoring in an amount for economic obsolescence. The traditional rules and methods of appraisal can reach a just result when applied to a regulated industry only when the economic facts of life are approached realistically. Earnings are limited to a predetermined percentage of original cost less depreciation or “rate base”. When the same earnings are returned on a base determined by a reproduction cost over three and one-half times the original cost, the earning rate is obviously drastically reduced. A potential purchaser would require a rate of return at least equivalent to that received on the original cost “rate base”. Accordingly, the reproduction cost less depreciation figure would have to be adjusted to obtain an acceptable market rate or return; otherwise, the potential purchaser would not invest. The requisite adjustment is economic obsolescence and the amount thereof must be determined to obtain fair market value. Fair market value cannot be determined by applying a depreciation rate computed on the basis of “physical depreciation” alone. The record demonstrates the validity of this conclusion. Uncontradicted expert proof established that this 4.62 miles of cathodically protected pipeline, installed in 1951, had experienced a physical deterioration of a mere 10%, resulting in a fair market value of $1,620,000 in the opinion of *516the town’s appraiser. If this valuation were applied proportionately to the 13,500 miles of pipeline in petitioner’s system, the enormity of error becomes obvious.
Furthermore, I fail to perceive how a remittal can solve the error, for there is nothing in the record that can produce a different conclusion if depreciation is determined by dividing the value of the tangible property by the number of years of its estimated physical life. A different rate would be a purely subjective determination based upon sheer speculation. The simple fact is that economic obsolescence must be considered to arrive at a realistic rate of depreciation in order to determine fair market value. Earnings are an integral part of that determination, and the limits imposed upon them by FERC cannot be overlooked in arriving at a just result. It is certainly a more enlightened approach and is representative of current thinking in many of our sister States (see Montaup Elec. Co. v Board of Assessors, 390 Mass 847). Such a process, in turn, entails consideration of market data to arrive at a capitalization rate which will act as a guide to determine the rate of return a prospective investor would require.
The specific amount of economic obsolescence is obtained by determining the income deficiency, considering petitioner’s projected net utility operating income, after application of that capitalization rate, which when reduced to a percentage figure can be applied to the reproduction cost less depreciation of the 4.62 miles of pipeline in the Town of Cazenovia. This economic obsolescence factor is the result of the FERC regulatory policies which limit earnings to a rate of return on original cost less depreciation and not on reproduction cost less depreciation. Thus, when the amount of economic obsolescence is subtracted from the reproduction cost less depreciation, the result is the indicated fair market value (see Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236, 242). The ultimate objective is fair market value, and if a cost approach and an income approach are both used to corroborate each other, the result is a closer determination of fair market value. We have recently held that either method may be used in establishing value for special franchise tax purposes, stating that courts should not establish an exclusive rule to apply in all cases (see Matter of Brooklyn Union Gas Co. v State Bd., 101 AD2d 414). Such a rule should apply with equal force in evaluating the real property of a utility (Onondaga County Water Auth. v New York Water Serv. Corp., 285, App Div 655, 662).
Accordingly, I would accept the methodology used by petitioner’s appraiser and his concept of valuation based upon the *517reproduction cost less depreciation, which, of course, for the reasons stated, must include an amount of economic obsolescence due to loss of value because of governmental regulation. To do otherwise will only shift the ultimate burden of paying local taxes, in large measure, to the consumers of natural gas throughout the area served by petitioner’s system, a result which is neither desirable nor acceptable.
However, while accepting the methodology and determination of petitioner’s appraiser, I would add to it the sum of $65,000, representing the value to petitioner of the 50-foot right of way for 4.62 miles it obtained to install the pipeline. While the right of way itself was not included in the assessment levied upon the pipeline (Real Property Tax Law, § 102, subd 12), and the land was assessed to the fee owners and not petitioner, the original cost or the replacement cost of the right of way to petitioner must be considered in any determination of fair market value (see People ex rel. Topping v Purdy, 143 App Div 389, affd 202 NY 550).
Therefore, I would reverse Special Term’s order, accept petitioner’s appraisal and add thereto a value for the right of way in the sum of $65,000. This would result in a fair market value of $160,100 for real property tax purposes at 100% of value.