Newell v. Loeb, 77 Wash. 182, 137 Pac. 811 (1913).

                     NEWELL v. LOEB.                     183
 Dec. 1913                    Syllabus.

made later, and hence is not objectionable in that the amount of
benefits found greatly exceed the cost of the improvement.

EVIDENCE - EXPERTS - OPINIONS - VALUE. Where expert witnesses
on land values qualified on direct examination, their testimony
was competent, lack of qualifications disclosed on
cross-examination going only to the weight of the evidence.

EMINENT DOMAIN - PROCEEDINGS - INSTRUCTIONS - EFFECT OF VIEW.
In eminent domain proceedings, an instruction to the jury on the
subject of their view of the premises, properly stating the
effect thereof in weighing and applying the evidence, is not
erroneous in that the jury were told that "what they see they
know."

SAME - PROCEEDINGS - APPEAL - REVIEW - VERDICT. In eminent
domain proceedings to establish a waterway district, the jury's
verdict as to the amount of benefits will not be disturbed where
supported by evidence, although the same was strongly
contradicted.

EMINENT DOMAIN - PROPERTY SUBJECT - PROPERTY DEVOTED TO PUBLIC
USE. The property of a public service corporation, already
devoted to a public use, may be acquired by condemnation in the
establishment of a waterway district, under 3 Rem. & Bal. Code,
SS 8172a, subd. "a" providing that private property and the
property of private corporations may be condemned when necessary
to make the improvements, and Id., subd. "d," providing for the
condemnation of all necessary and needed rights of way in the
straightening or improving of the river.

BOUNDARIES - NAVIGABLE STREAMS. A deed according to recorded
plats conveys the land only to the bank of the river, where the
boundaries in the plat ran "to the right bank" of the river, and
"thence up stream with the meanders" etc.

NAVIGABLE WATERS - RIPARIAN RIGHTS - DIVERSION OF WATERS BY
STATE - EMINENT DOMAIN - COMPENSATION. Riparian owners have no
rights in the bed of a navigable stream, beyond their boundaries,
and no rights in the waters of the river as against the state or
its agency; hence a riparian owner is not entitled to recover
damages from the establishment of a waterway district by reason
of the diversion of the water and being compelled to procure a
supply of water elsewhere.

EMINENT DOMAIN - WATERWAY DISTRICTS - PROCEEDINGS - JURY TRIAL
- BENEFITS - DETERMINATION. Upon the assessment of benefits by a
jury in a condemnation proceeding to establish a waterway
district, in which there are thousands of party defendants, it is
not error to permit the estimates of the witnesses to be taken by
the jury to the jury room, under instructions that they were but
aids to their recollection of the testimony and not to be
considered as evidence.

 184    NEWELL v. LOEB.
                    Citations of Counsel.           77 Wash.

SAME - PROCEEDINGS - ASSESSMENTS - BENEFITS - SEPARATE TRIALS.
3 Rem. & Bal. Code, SS 8166a et seq., providing for the
establishment of waterway districts, does not authorize separate
trials upon the question of the maximum benefits to the property
in the district.

SAME - ASSESSMENT OF BENEFITS - RAILROAD PROPERTY. The fact
that a railroad right of way is at present being used exclusively
for railroad purposes is no objection to its assessment for
benefits from the establishment of a waterway district.

SAME - ASSESSMENT OF BENEFITS - DETERMINATION. Under 3 Rem. &
Bal. Code, SS 8177-2, requiring the jury in condemnation
proceedings to establish a waterway district, to find the maximum
amount of benefits per acre or per lot, the jury must determine
the maximum benefits to platted and unplatted property at the
time of the trial; hence cannot make deductions for streets that
might be platted in the future.

Appeal from a judgment of the superior court for King
county, Mackintosh, J., entered December 14, 1912, upon
verdicts of a jury awarding damages and assessing benefits
in condemnation proceedings to establish a waterway district.
Affirmed.

Richard Saxe Jones, for appellants Loeb and Moyses, contended,
inter alia, that appellants were deprived of their right
to a jury trial in being deprived of their peremptory
challenges. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285;
Times Pub. Co. v. Carlisle Journal Co., 94 Fed. 762; Betts v.
United States, 132 Fed. 228; Proprietors of Mills etc. v.
habitants of Randolph etc., 157 Mass. 345, 32 N.E. 153.
The power and authority of the Federal government over
navigable waters is expressly limited to a sovereign power
of regulation for the purpose of navigation. 2 Blackstone,
Commentaries (4th ed.), p. 18; Sweet v. Syracuse, 129 N.Y.
316, 27 N.E. 1081, 29 N.E. 289; United States v.
Chandler-Dunbar Water Power Co., 209 U.S. 447; St. Anthony
Falls Water Power Co. v. St. Paul Water Commissioners,
168 U.S. 349. All title and power of control by the
State of Washington over the beds and waters of a navigable
stream comes from a transfer of that power from the United
States government and is not in any degree greater than the

                     NEWELL v. LOEB.                     185
 Dec. 1913               Citations of Counsel.

rights of the United States government, itself, and is
therefore simply a sovereign power of regulation for the purposes
of navigation; and the proprietary rights of riparian owners
are jure natura, subject, however, to the sovereign control.
Union Depot etc. Co. v. Brunswick, 31 Minn. 297, 17 N.W.
626, 47 Am. Rep. 789; Hobart v. Hall, 174 Fed. 433; Smith
v. Rochester, 92 N.Y. 463, 44 Am. Rep. 393; Rumsey v.
New York & N.E.R. Co., 133 N.Y. 79, 30 N.E. 654, 28
Am. St. 600, 15 L.R.A. 618.

James B. Howe and Hugh A. Tait, for appellants Puget
Sound Traction, Light & Power Company et al., contended,
among other things, that the traction company's property
and property rights are already devoted to a public use,
and cannot therefore be condemned or taken for another
such use. 15 Cyc. 567; Lewis, Eminent Domain (3d ed.),
SS 440; Seattle & M.R. Co. v. State, 7 Wash. 150, 34 Pac.
551, 38 Am. St. 866, 22 L R.A. 217; Samish River Boom
Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; State
ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166,
91 Pac. 637; Tacoma v. Nisqually Power Co., 57 Wash. 420,
107 Pac. 199; Roberts v. Seattle, 63 Wash. 573, 116 Pac. 25;
Seattle v. Fidelity Trust Co., 22 Wash. 154, 60 Pac. 133;
State ex rel. Postal Tel. Cable Co. v. Superior Court,
64 Wash. 189, 116 Pac. 855; State ex rel. Wauconda Inv. Co.
v. Superior Court, 68 Wash. 660, 124 Pac. 127, Ann. Cas.
1913 E. 1076. Title to property on a navigable body of
water extends to the meander line, if the meander line is
below the line of ordinary high water. Scurry v. Jones,
4 Wash. 468, 30 Pac. 726; Cogswell v. Forrest, 14 Wash. 1,
43 Pac. 1098; Washougal & LaCamas Transp. Co. v. Dalles,
Portland & A. Nav. Co., 27 Wash. 490, 68 Pac. 74; Jones v.
Callvert, 32 Wash. 610, 73 Pac. 701; Kneeland v. Korter,
40 Wash. 359, 82 Pac. 608, 1 L.R.A. (N.S.) 745. The
title of the traction company to its property extends below
the line of ordinary high water and into the bed of the river,

 186    NEWELL v. LOEB.
                    Citations of Counsel.           77 Wash.

and it has the right to have the water flow in its customary
volume and manner over that part of the bed of the river
which it owns, and it cannot be lawfully deprived of such
right without first being compensated for the damage
suffered thereby. Rigney v. Tacoma Light & Water Co.,
9 Wash. 576, 38 Pac. 147, 26 L.R.A. 425; New Whatcom
v. Fairhaven Land Co., 24 Wash. 493, 64 Pac. 735, 54 L.R.A.
190; Madson v. Spokane Valley Land etc. Co., 40 Wash. 414,
82 Pac. 718, 6 L.R.A. (N.S.) 5.

Ira Branson (Gay & Kelleran, of counsel), for appellants
Macaulay et al., contended, among other things, that the
unconstitutionality of the law lies in the fact that there is
a judgment against the land for the amount of the difference
between two million dollars and $850,000; to the extent
of such excess the property of these appellants and others is
taken without due process of law; it is taken without
warrant or justification. Page and Jones, Taxation by
Assessment, SS 466; Davis v. Litchfield, 145 Ill. 313, 33 N.E. 888,
21 L.R.A. 563; Union Bldg. Ass'n v. Chicago, 61 Ill. 439;
State ex rel. Lingenfelter v. Danville & North Salem Gravel
Road Co., 33 Ind. 133; Minnesota Linseed Oil Co. v. Palmer,
20 Minn. 468; Eno v. Mayor etc. of New York, 68 N.Y.
214; Asheville v. Wachovia Loan & Trust Co., 143 N.C.
360, 55 S.E. 800; In re Mill Creek Sewer, 196 Pa. St. 183,
46 Atl. 312; Ankeny v. Palmer, 20 Minn. 477. The property
owner is given no right to be heard either as to the amount
which may be charged against the property, or as to the
equalized amount to be charged; the jury did not make the
assessment, and the property owner is given no day in court
upon an assessment on any question, except that of maximum
benefits, which is not sufficient. Page and Jones, Taxation
by Assessment, SS 119; Norwood v. Baker, 172 U.S. 269;
Anderson v. Messenger, 158 Fed. 250; Fay v. Springfield,
94 Fed. 409; Murdock v. Cincinnati, 39 Fed. 891; Scott v.
Toledo, 36 Fed. 385; Lower Kings River Reclamation District

                     NEWELL v. LOEB.                     187
 Dec. 1913               Opinion Per MOUNT, J.

No. 531 v. Phillips, 108 Cal. 306, 39 Pac. 630, 41 Pac.
335; Hutson v. Woodbridge Protection District, 79 Cal. 90,
16 Pac. 549, 21 Pac. 435; Boorman v. Santa Barbara, 65
Cal. 313, 4 Pac. 31; Brown v. Denver, 7 Colo. 305; Allman
v. District of Columbia, 3 App. D.C. 8.

Hughes, McMicken, Dovell & Ramsey, for appellant Puget
Mill Company.

Turner & Hartge, Carkeek, McDonald & Kapp, Preston
& Thorgrimson, and Jay C. Allen, for appellants Rines et al.

Farrell, Kane & Stratton, for appellant Columbia & Puget
Sound Railroad Company.

Shorett, McLaren & Shorett, for respondents.

 188    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

The facts upon which assignments of error are based will be
hereafter stated sufficiently to raise the questions presented.

The object of the improvement sought to be made by the
commissioners is to straighten the channel of the Duwamish
river between the termini of the district. The Duwamish
river, as it runs through this district, makes certain bends.
The length of the river between the termini of the district in
its natural condition is nearly ten miles. Nearly half of this
distance is obviated by the proposed improvement. In
straightening the river, it is the purpose of the commissioners
to obviate the bends in the natural channel by cutting a new
channel from one bend in the river to the next nearest bend.
One of these bends, known as the "Ox Bow Bend," is in the
shape of a letter "U." The appellants Loeb and Moyses own
property upon the shore of the river as it flows in its natural
state which will be left by the improvement one-half mile away
from the new channel of the river. The river flows in a
northwesterly direction. It is proposed to put a dam across
the natural channel at its southerly end near the artificial
channel, and thus prevent fresh water from flowing down the
natural channel by the property of Loeb and Moyses. The
same is also true of other bends.

The object of the action is to determine, first, the damages
or compensation for the property taken, together with the
estimated cost of the whole improvement; and second, to
determine the maximum amount of benefits which will be
derived from the improvement and which will inure to the
property within the district. The act upon which the proceeding
is prosecuted provides, at SS 26, that

"In case the damages or amount of compensation for such
property, together with the estimated costs of the
improvement, amount to more than the maximum amount of benefits
which will be derived from said improvement, or if said
improvement is not practicable, or will not be conducive to the
public health, sanitation, welfare and convenience, or will not
increase the public revenue, the court shall dismiss such
proceedings." 3 Rem. & Bal. Code, SS 8190a.

                     NEWELL v. LOEB.                     189
 Dec. 1913               Opinion Per MOUNT, J.

The act also provides, at SS 14 (Id., SS 8177-2), that, if the
court shall be satisfied by competent proof that the
improvement is practicable and conducive to the public health, etc.,
and that the contemplated use is really a public use, and that
the lands sought to be appropriated are necessary for the
establishment of the improvement, the court shall call a jury
of twelve persons to be impaneled to fix the compensation and
to assess the damages and benefits; that the jurors at such
trial shall make in each case a separate assessment of the
damages which shall result to any person, corporation or
company, or to the state, by reason of the appropriation and
use of the lands for said improvement, and shall ascertain
the amount of damages to be paid to said owners respectively;
and that the jury shall further find the maximum amount of
benefits per acre or per lot or tract to be derived by each
landowner.

After an adjudication by the court to the effect that the
improvement was practicable, etc., and that the contemplated
use for which the property sought to be taken was really a
public use, a writ of certiorari was prosecuted to this court
and certain constitutional objections were therein raised. See
State ex rel. Puget Mill Co. v. Superior Court, 68 Wash. 425,
123 Pac. 791. Prior to that time, a writ was prosecuted to
this court from the order of the county commissioners
authorizing the organization of the district. See State ex rel.
Bussell v. Abraham, 64 Wash. 621, 117 Pac. 501. In these cases
we reviewed most of the constitutional questions which are
now sought to be relitigated upon this appeal. We shall
therefore not notice those questions at this time.

This case is like the case of Commissioners Commercial
Waterway District No. & etc. v. Seattle Factory Sites Co.,
76 Wash. 181, 135 Pac. 1042. In that case a proceeding
was prosecuted in the same manner and for the same
purposes that this proceeding is prosecuted. We there set out
the principal features of the act of 1911 under which this
proceeding was prosecuted, and we refer to that decision

 190    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

without again restating the provisions of the act, except as
the same may be necessary to a clear understanding of the
questions decided herein.

All of the appellants in this proceeding objected to the
manner of calling and impaneling the jury, and base error
thereon. It appears that, when the case was called for trial
upon the questions hereinbefore stated, the court selected one
jury to try the question of damages to the property taken,
and also to assess the maximum benefits to the lands within
the district. The appellants insisted that they were each
entitled to separate juries and that they were not required to
join in the peremptory challenge. By referring to the act,
it will be seen that it provides for one jury to try these
questions. It also provides that each person whose property is
taken or damaged, and each person whose property is liable
to assessment within the district, shall be made a party
defendant. In other words, the statute provides for a special
proceeding in these cases. The jury was required to, and did
in this case, try out separately each case where property was
taken or damaged. But as to the property specially benefited,
all were tried together. The statute makes the case one case
and provides for one jury to try the questions to be
determined. There is no provision in the act with reference to
peremptory challenge. Assuming, however, that the general
statute governs in this case by reason of the fact that no
special provision is made for such challenges, it is plain that it
was not error when the court required the defendants to join
in the challenge, because the statute makes the action one
action. Even if the general statute with reference to challenges
applies, it was necessary for all the defendants to join
in the challenge. In Manhattan Building Co. v. Seattle,
52 Wash. 226, 100 Pac. 330, we said:

"The assignment based upon the fact that the defendants
were required to join in their peremptory challenges is not
well rounded. The section of the statute providing for
peremptory challenges (Bal. Code, SS 4979; P.C. SS 593),

                     NEWELL v. LOEB.                     191
 Dec. 1913               Opinion Per MOUNT, J.

provides that when there are several parties on either side, they
shall join in a challenge before it can be made. Construing
this section we have held that defendants representing
conflicting interests and appearing separately must join in a
challenge before it can be allowed."

It follows, therefore, if this proceeding is a special one,
no provision being made for peremptory challenges, no error
can be based upon the fact that none were allowed. If the
general statute applies, it was not error to deny the
peremptory challenge unless all joined therein.

The appellants Loeb and Moyses requested the court to
give an instruction to the effect that persons owning property
upon a navigable stream have the right to the use of that
stream for the purposes of approach, the construction of
wharves, docks, and for all the usual purposes of navigation;
and that, if the jury should find that either of such purposes
would be lost as to Loeb and Moyses by reason of the
improvement contemplated, the jury might consider such fact in
determining the amount of damages. The court refused this
instruction, but gave an instruction to the effect that the jury
should not take into consideration the fact that the main
channel of the Duwamish river might be diverted by reason of
the improvement, and that the state or its subsidiary
corporation, the waterway district, might claim the bed of the
river as a diverted stream.

The waterway district was not seeking to take any of the
property of these appellants. But it is claimed by them
that, because the channel of the Duwamish river was changed
at the Ox Bow bend so as to leave the property of these
appellants one-half mile from the new channel, this was a
damaging of their property on account of which they are
entitled to be compensated. It is conceded in the case that
the Duwamish river is a navigable river. These instructions
raise the question, which is presented here by the appellants,
whether the state takes title to the bed of navigable rivers

 192    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

or whether, when the bed of the river is changed or reclaimed,
the title to the bed belongs to the adjoining owners.

There are many conflicting opinions upon this question.
But we think it is set at rest in this state by many decisions
heretofore rendered. The constitution of this state, at SS 1,
of article 17, declares, that the state asserts its ownership to
the beds and shores of all navigable waters in the state up to
and including the line of ordinary high tide where the tide
ebbs and flows, and up to and including the line of ordinary
high water within the banks of all rivers and lakes. In
Shively v. Bowlby, 152 U.S. 1, it is said:

"The foregoing summary of the laws of the original states
shows that there is no universal and uniform law upon the
subject; but that each state has dealt with the lands under the
tide waters within its borders according to its own views of
justice and policy, reserving its own control over such lands,
or granting rights therein to individuals or corporations,
whether owners of the adjoining upland or not, as it
considered for the best interests of the public. Great caution,
therefore, is necessary in applying precedents in one state to
cases arising in another."

In Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83,
102 Pac. 1041, 104 Pac. 267, this court said:

"Legislation has proceeded upon one of two theories with
reference to tide and shore lands. The one, that the state will
recognize a riparian right in the upland owner and compel
the public to subordinate its rights (except as to navigation)
to his convenience. The other is that the title to all tide
and shore lands is in the state, and may be sold, leased, or
otherwise disposed of in aid of business and commerce, and
without reference to the comfort and convenience of the
upland owner. This state has asserted the latter doctrine. It
will thus be seen that the case involves primarily the question
of state policy. The state has a right to deal with its own
property as its own. There is, therefore, no Federal
question involved."

See, also, Bilger v. State, 63 Wash. 457, 116 Pac. 19;
Austin v. Bellingham, 69 Wash. 677, 126 Pac. 59; State ex

                     NEWELL v. LOEB.                     193
 Dec. 1913               Opinion Per MOUNT, J.

rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442,
126 Pac. 945. In the case last cited, after reviewing the
question as to the right of an upland owner to take water
from a navigable lake, we said:

"No decision of this court has come to our notice dealing
directly with a claim of water for irrigation made by an
upland owner by reason of such land bordering upon navigable
water; but it seems to us that our constitutional declaration
of ownership, and former decisions touching the effect of that
declaration, are clearly opposed to the contention that an
upland owner can make lawful claim to the use of navigable
water upon which his land borders, and rest such claim solely
upon the ground that he has a common law right in such water
by reason of his land bordering thereon, as against the state
or one who appropriates such water in pursuance of the laws
of the state."

And in Commissioners Commercial Waterway District No.
2 etc. v. Seattle Factory Sites Co., supra, at page 194, we
said:

"It may be conceded that a description in a conveyance
which bounds the land conveyed by a stream, if unnavigable,
will be construed as meaning the thread of the stream, but
where the description is specific in its language, naming the
bank of the stream as the boundary of the land conveyed, we
think the decided weight of authority is to the effect that the
grantee's rights will not extend beyond such specified
boundary so as to give him any right in the bed of the stream.
[Citing authorities.] We understand it to be conceded in
the briefs of counsel that Cedar river is unnavigable and that
Black river is navigable. As to the latter, it is plain that the
title to the bed thereof is not in appellant, but is in the state.
Section 1, article 17, state constitution."

From these, and numerous other authorities which might
be cited, it is plain that the state is the owner of the bed of
the Duwamish river, being a navigable river, and that the
appellants Loeb and Moyses have no interest therein. And
the fact, if it is a fact, that their land borders upon the shore

7 - 77 WASH.

 194    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

of the river does not give them any rights, either in the bed
of the stream or in the waters thereof.

The jury returned a finding to the effect that the property
of the appellants Loeb and Moyses would receive maximum
benefits in the sum of $3,100. The maximum benefits for the
whole improvement was the sum of more than $2,000,000;
and the cost of the improvement was estimated to be $1,650,000.
It was conceded that King county had authorized
bond issue of $600,000 to be applied to the cost of the
improvement. It is argued by the appellants that, because of
the revenues which can and will be obtained by the sale of
dirt taken from the excavation of the waterway, and because
of the sale of the bed of the stream, that the cost of the
improvement will be reduced to about $850,000; that the
assessment of maximum benefits against the land of the
appellants will thereby be reduced to about $1,500; and that the
excess between this and $3,100, as found by the jury to be
the maximum benefits to this property will be assessed
against the property of the appellants and will stand as a
lien against it in double the amount actually necessary to make
the improvement; that this, in substance is a taking of their
property to that extent without due process of law.

The waterway statute, at SS 14, provides that the jury shall
find the maximum amount of benefits. From a reading of the
whole act, it is apparent that this maximum amount of
benefits is to be the basis upon which the assessments for the
amounts actually needed will finally be made by the district
commissioners. While it is true that this assessment is in
the nature of a lien against the property to pay for the
improvement, it is, in reality, only a determination of the
benefits which the property will receive by the improvement, and
limits the extent to which an assessment may be made. As
stated in Commercial Waterway District No. 2 v. Seattle
Factory Sites Company, supra, a trial upon the issue of
maximum benefits is not a constitutional trial by jury. "The
legislature would have satisfied all constitutional requirements in

                     NEWELL v. LOEB.                     195
 Dec. 1913               Opinion Per MOUNT, J.

that regard had it provided for the determining of maximum
benefits, upon due notice and hearing, by some board or
tribunal, entirely without the aid of a jury, as it has in
ordinary local assessment proceedings."

The fixing of the amount of the maximum benefits does
not, in our opinion, violate any rule of law, nor does it fix
upon the appellants' property any amount which becomes a
lien. That is done when the assessment is made by the
commissioners, and then only to the extent of the cost. We are of
the opinion, therefore, that there is no merit in this
contention. In fact, the less the improvement may cost, the less the
appellants will be required to pay; the benefits to their
property will remain the same. No authorities are cited to this
proposition by the appellants and it seems to us that the
position of the appellants is not tenable.

The appellants argue that the court erred in hearing the
evidence of certain expert witnesses, for the reason that it is
shown that these witnesses were disqualified to testify as to
benefits and values. As we read the record, these witnesses,
upon direct examination, testified that they were acquainted
with the lands in question and with the values thereof, and
with the benefits that would accrue to the lands by reason of
the improvement. It is plain, we think, that this made their
evidence proper to be considered by the jury. If, upon cross-
examination, the witnesses disclosed a lack of knowledge as to
values, the facts disclosed by such cross-examination were
proper to be submitted to the jury for their consideration in
passing upon the weight of such evidence. But the
competency of the witnesses on direct examination was clearly
shown. North Coast R. Co. v. Gentry, 58 Wash. 82, 107
Poe. 1060.

In his instructions to the jury, the court said:

"In this case you have been permitted to view the premises
in question. One of the objects of the view was that you
might acquire such information as to the physical conditions
and characteristics there as would come to one through the

 196    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

sense of seeing. What the jury sees they know; and another
purpose of the view was that by putting you in possession of
such information as would come to you through the sense of
seeing you would be better thereby enabled to weigh, consider,
and apply the testimony which would be introduced in the
trial of the cause. In this case it is your duty to harmonize
the testimony of the witnesses, if possible, so as not to impute
false swearing to any witness. If this can be done
consistently with the truth you should do so, but if you find it
impossible to harmonize the testimony, and if you find further
from the evidence of your senses of view and from the
testimony on the stand, that any witness who has testified before
you has wilfully testified falsely concerning any material fact
in the case, then you have a right to disregard his entire
testimony except in so far as you may find that the
testimony of such witness is corroborated by other credible
evidence or by facts and circumstances proved on the trial. And
if in your judgment the evidence is conflicting as to the
benefits you should resort to the knowledge gained upon your view
as bearing upon the weight to be given to the various and
conflicting statements and estimates."

It is contended by the appellants that the words, "What
the jury sees they know," and the last sentence of this
instruction, were erroneous. We think this instruction is
substantially the same as one which was approved by us in
Seattle & M.R. Co. v. Roeder, 30 Wash. 244, 70 Pac. 498, 94
Am. St. 864. See, also, Murphy v. Chicago, Milwaukee & St.
Paul R. Co., 66 Wash. 663, 120 Pac. 525.

A large number of other instructions are complained of as
erroneous, but as the appellants rely upon the points which
we have hereinbefore discussed and as we find no merit in the
objections to the instructions, we shall not notice them
further.

We pass now to the appeal of the Puget Mill Company. It
appears that the Puget Mill Company owns about 900 acres
of land which is included within the improvement district.
The jury found that the maximum benefits to this tract of
land would be $69,450. It is argued by the appellant that
the improvement will not benefit this tract of land to any

                     NEWELL v. LOEB.                     197
 Dec. 1913               Opinion Per MOUNT, J.

appreciable extent and that, therefore, the finding of the jury
was erroneous. It is sufficient to say that this question was
tried to the jury. There was evidence to the effect that the
land would be benefited in the amount claimed. There was
also evidence and strong argument to the effect that it would
not be benefited anything like the amount claimed. But this
was a question which was properly submitted to the jury, and
this court cannot say from the record that the amount of
maximum benefits found exceeds the benefits which may accrue
to the property. The other points presented by this
appellant are decided in what we have already said heretofore.

The appellants Puget Sound Traction, Light & Power
Company, the Seattle Electric Company, Boston Safe Deposit
& Trust Company, and Old Colony Trust Company are interested
in a tract of land bordering upon the river. This tract
comprises seventeen and one-half acres used as one entire
tract by the traction company lying on the right bank of
the river, at a point which has been designated in the
testimony as the "Big Bend." In 1906, the Seattle Electric
Company began the construction upon this property of a steam
electrical plant, which cost $945,000 to build, exclusive of
the value of the land. This building was constructed for the
purpose of generating a supply of electrical energy for the
operation of its street cars in the city of Seattle. The plant
consists of a heavy concrete building, practically indestructible,
75 feet wide, 220 feet long, and 70 to 80 feet high. As
a part of the plant, there are two smokestacks, one of steel
110 feet high, and one of concrete over 265 feet high and 17
feet in diameter. The building is fitted with machinery
capable of generating 17,000 kilowatts of electricity, or 22,000
horse power, at a pressure of 13,200 volts. These engines are
operated by steam which, after passing through the engines,
is condensed in a vacuum by a heavy flow of cold water. These
engines cannot be operated in a manner to obtain their
greatest efficiency without a continuous flow of cold water. The
plant was put in operation in the spring of 1907, and was

 198    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

continuously used thereafter until the spring of 1912, as one
of the principal sources of supply of electric current by the
Seattle Electric Company for the operation of street cars in
the city of Seattle. Since that time, it has been and now is
maintained as an auxiliary and emergency plant in the event
of the breakdown or damage of any of its water power plants.

The plan of improvement proposed by the waterway
commission is to excavate a canal in substantially a straight line
from the upper to the lower end of the bend of the river upon
which this property is located, and to construct a dam across
the bed of the present channel at the upper end of the bend,
so as to divert the flow of the river from its present natural
channel into such canal or new channel, thereby diverting
the whole of the flow of the river from in front of the plant of
the traction company.

The trial court refused to permit these appellants to show
that, after the water had been diverted from its present into
its new channel, it would be necessary for them to construct a
pipe line for a distance of five miles in order to procure fresh
water for the purpose of operating its machinery, and would
have to construct pumping stations and procure a right of
way for such pipe line and stations; and that the cost to
these appellants of procuring water for this purpose would
exceed $444,000. It is alleged that this was error, and that
the diversion of the Duwamish river from its natural channel
into the artificial channel would cause great damage to these
appellants. It is argued first, that the waters of the river
were being used by the traction company for a public use,
and that such waters could not be condemned for another
public use; second, that the title to the traction company's
property on which its plant is located extends into the bed
of the Duwamish river and below the ordinary high tide;
third, that since its title extends into the bed of the river, such
flow cannot be diverted without the paying of just compensation
on account of damages caused thereby; fourth, that the
levy of an assessment upon the property within the district in

                     NEWELL v. LOEB.                     199
 Dec. 1913               Opinion Per MOUNT, J.

excess of the sum required to pay the cost of the improvement
constituted a taking of property without due process of law
and fifth, that the action of the trial court in permitting
counsel for the commissioners to attach to the forms of verdict
submitted to the jury statements of what their witnesses
testified the maximum benefits would be constituted reversible
error. We shall notice these contentions in their order as
stated.

It is first contended that, because the appellants' property
was already devoted to a public use, that it cannot be
condemned. The appellants cite cases to the effect that it is
the established rule that property devoted to a public use may
not be taken for another public use without legislative grant,
either in express terms or by necessary implication. There
can be no doubt about this being the rule. Section 7 of the
Laws of 1911, p. 19, defining the powers of the waterway
district provides, at subdivision "a," that the district shall have
the right of eminent domain "with power by and through its
board of commissioners to cause to be condemned and
appropriated private property for the use of said organization in
the construction and maintenance of a system of commercial
waterways and make just compensation therefor: Provided,
That the property of private corporations may be subjected
to the same rights of eminent domain as that of private
individuals: Provided further, That the said board of commissioners
shall have the power to acquire by purchase all the
property necessary to make the improvements herein
provided for." 3 Rem. & Bal. Code, SS 8172a.

Subdivision "d" of that section provides:

"In the accomplishment of the foregoing objects, the
commissioners of such waterway district are hereby given the
right, power and authority by purchase or the exercise of the
power and authority of eminent domain, or otherwise, to
acquire all necessary and needed rights of way in the straightening,
deepening, or widening, or otherwise improving of such
rivers, watercourses or streams." Id., SS 8172a.

 200    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

It seems to us that the power is there directly conferred,
and at least by necessary implication, upon the district to
acquire, either by purchase or condemnation, as the commission
may see fit, all necessary and needed rights of way. We are
of the opinion, therefore, that, in case of necessity, the
waterway commission has at least implied authority under these
provisions to take the property of the appellants. Tacoma v.
Nisqually Power Co., 57 Wash. 420, 107 Pac. 199.

These appellants argue that the title of the traction
company to the property upon which its plant is located extends
into the bed of the Duwamish river, and below the line of
ordinary high water. On the trial of the case, there was
introduced in evidence several plats of the lands. It appears
that the tract of 17-1/2 acres had been platted into lots and
blocks known as Queen Addition and Queen Addition
Supplemental. It is conceded that the appellants purchased
the lots upon which their plant is located according to the
recorded plats thereof. These plats, in the description of the
additions, state that the boundaries begin at a certain point
and run at a certain angle for a given distance "to the right
bank of the Duwamish river, thence up stream with the
meanders of said right bank." And in the supplemental plat,
it is stated that the boundaries begin at a certain point and
extend a certain distance in a given direction "to the
meanders of Duwamish river." It is apparent from a reading
of the descriptions upon these plats that the description of
Queen Addition extended only to the right bank of the
Duwamish river, and that the description of Queen Addition
Supplemental extended to the meanders of the Duwamish
river and along the meanders thereof. We are unable to
determine from the record whether these meanders were in the
bed of the river or upon the bank, but that face is not
important. The trial court was of the opinion that the title
acquired by the appellants extended only to the bank of the
river. We are inclined to the opinion that the trial court
was right in this respect. If the property of the appellants

                     NEWELL v. LOEB.                     201
 Dec. 1913               Opinion Per MOUNT, J.

extended only to the bank of the river, and did not include
the bed of the river, it is plain from what we have heretofore
said that the appellants had no rights beyond the line of the
property and no rights in the waters of the river. If these
meanders are in the bed of the river, the appellants have no
rights therein, because it is conceded that the river is a
navigable stream. In United States v. Chandler-Dunbar Water
Power Co., decided May 26, 1913, Advance Sheets U.S.
Supreme Court, July 1, 1913, page 667, the supreme court was
considering the right of the upland owners to the flow of the
waters of a navigable stream, and it was there said:

"But whether this private right to the use of the flow of
the water and flow of the stream be based upon the qualified
title which the company had to the bed of the river over which
it flows, or the ownership of land bordering upon the river, is
of no prime importance. In neither event can there be said to
arise any ownership of the river. Ownership of a private
stream wholly upon the lands of an individual is conceivable;
but that the running water in a great navigable stream is
capable of private ownership is inconceivable."

And in Scranton v. Wheeler, 179 U.S. 141, at page 163,
the court said:

"The primary use of the waters and the lands under them
is for the purposes of navigation, and the erection of piers
in them to improve navigation for the public is entirely
consistent with such use, and infringes no right of the riparian
owner. Whatever the nature of the interest of a riparian
owner in the submerged lands in front of his upland bordering
on a public navigable water, his title is not as full and
complete as his title to fast land which has no direct
connection with the navigation of such water. It is a qualified title,
a bare technical title, not at his absolute disposal, as is his
upland, but to be held at all times subordinate to such use of
the submerged lands and of the waters flowing over them as
may be consistent with or demanded by the public right of
navigation . . . If the riparian owner cannot enjoy
access to navigability because of the improvement or navigation
by the construction away from the shore line of works in
a public navigable river or water, and if such right of access

 202    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

ceases alone for that reason to be of value, there is not,
within the meaning of the constitution, a taking of private
property for public use, but only a consequential injury to
a right which must be enjoyed, as was said in the Yates case,
'in due subjection to the rights of the public.'"

And in McKeen v. Delaware Division Canal Co., 49 Pa. St.
424, it was said:

"Every one who buys property upon a navigable stream
purchases subject to the superior rights of the Commonwealth
to regulate and improve it for the benefit of all her citizens."

In Zimmerman v. Union Canal Co., 1 Watts & S. (Pa.)
346, it was said:

"It seems, however, to be but in accordance with the
decisions made upon the subject, that it is one of the incidents to
holding property on one or both sides of a navigable stream
that the party is subject to, any inconvenience that may
arise from deepening the channel, or otherwise improving the
navigation of such stream, is to be submitted to, without any
right to damages therefor, except as such improvement may
flood or drown their lands."

See, also, Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840,
54 L.R.A. 199; Wilson v. Oregon-Washington R. & Nav.
Co., 71 Wash. 102, 127 Pac. 847.

We are of the opinion, therefore, that the court properly
excluded evidence tending to show the cost or the necessity
for obtaining water at some other place and obtaining rights
of way therefor, because the appellants have no interest in the
waters of the navigable river which they can enforce against
the state or its agency.

It is next argued that the levy of assessments for maximum
benefits is void for the reason that it is grossly in excess of
the estimated cost of the improvement. It is unnecessary to
consider this question further. It is the same as hereinbefore
determined.

It is next argued that the finding of the jury of the
maximum benefits is void because the court permitted statements
of the benefits claimed by the respondents to be submitted to

                     NEWELL v. LOEB.                     203
 Dec. 1913               Opinion Per MOUNT, J.

the jury. We have seen above, in so far as the finding of the
jury of maximum benefits was concerned, that the jury was
not a constitutional jury for that purpose. There were some
10,000 different pieces of land included within the assessment
district. It was, of course, impossible for the jury to
remember what the witnesses had testified with reference to the
special benefits to each of these tracts. The court therefore
permitted the estimates of the witnesses to be taken by the
jury to the jury room. The jury was instructed that these
memoranda were not in any sense to be considered as evidence,
but were given to them as aids to their recollection of the
testimony in case they needed to refresh their recollection.
We think these estimates were of no greater moment than the
allegations of the commissioners as to what the maximum
benefits would be, which was held in Commissioners
Commercial Waterway District No. 2 etc. v. Seattle Factory Sites
Co., supra, not to be prejudicial. In Higgins v. Los Angeles
Gas & Elec. Co., 159 Cal. 651, 115 Pac. 313, the supreme
court of California held that it was not error to permit the
jury to take with them and use in their deliberations any
exhibit where the circumstances call for it, with a cautionary
instruction as to the nature and use which they shall make of
the exhibit. We think there was no prejudicial error in this.

It is next argued that the finding of the jury of the maximum
benefits is void for the reason that the appellants were
not granted a separate trial upon that question. It is sufficient
answer to this to say that the statute does not require
a separate trial upon these questions. It in substance requires
that the benefits shall be determined by the jury in one
proceeding; and it would therefore be improper to award a
separate hearing upon each assessment of maximum benefits.
There is no merit in this assignment.

On the appeal of Columbia & Puget Sound Railroad Company,
in addition to the constitutional questions and questions
hereinbefore discussed, it is contended that the maximum
benefits assessed against the right of way of the railroad

 204    NEWELL v. LOEB.
                    Opinion Per MOUNT, J.           77 Wash.

company is excessive. It appears that the right of way of this
appellant was located between the rights of way of two other
railway companies running through this improvement
district. And it is argued that, by reason of the fact that
this appellant, in order to obtain any business, will have to
cross over the right of way of at least one of the other railway
companies, it therefore cannot be benefited by the
improvement. It is also contended that this right of way is used
exclusively for railway purposes, and is not benefited by the
improvement. It is sufficient answer to this contention to say
that the maximum benefits assessed by the jury has evidence
in the record to support it; and the fact that the right of way
is at present being used for railway purposes only is no
objection to its assessment for benefits. In Great Northern R.
Co. v. Seattle, 73 Wash. 576, 132 Pac. 234, we said:

"In the case cited [Northern Pac. R. Co. v. Seattle,
46 Wash. 674, 91 Pac. 244, 123 Am. St. 955, 12 L.R.A.
(N.S.) 121] we further held that property abutting upon a
local improvement, and devoted to railroad purposes, might
be assessed for benefits conferred, and that such use would
not relieve it from liability to assessment, the controlling
question being, not whether the present use would be benefited, but
whether the property itself, irrespective of such use, would be
benefited."

This is decisive of the question presented upon behalf of
this appellant.

On the part of the appellants Rines, et al., in addition to
the questions already hereinbefore decided, it is argued that
the assessments upon unplatted property was greater than
that upon platted property by reason of the fact that no
deductions were made for streets. The act under which this
proceeding is maintained provides, at Id., SS 8177-2, that the jury
"shall further find a maximum amount of benefits per acre
or per lot or tract to be derived by each of the land owners."
Of course this means that the jury shall determine the
maximum benefits upon the property as it appears at the time,
and it is not for the jury to consider whether acreage or

                     MALETTE v. SPOKANE.                205
 Dec. 1913                    Syllabus.

tracts will thereafter be platted. It is their duty to
determine the maximum benefits that would accrue from the
improvement to the property as it was at that time, irrespective
of whether it might or might not be platted in the future.
This is all the jury did in this case. We think there is no
merit in the point raised.

Upon the appeal of the Estate of Harriett Macauley,
deceased, it is argued that the verdict awarding this appellant
damages for property taken was contrary to the evidence. It
is conceded by the appellant that the evidence is conflicting
upon the amount of damages sustained. In such cases, we
have held that we will not disturb the verdict of the jury
upon questions properly submitted. Bartlett v. Plaskett,
73 Wash. 449, 131 Pac. 1125.

The other questions presented by these appellants are
hereinbefore decided. We find no error in the record.

The judgments appealed from are therefore affirmed. The
costs recoverable by the respondents will be taxed against the
six appellants equally.

CROW, C.J., PARKER, and MORRIS, JJ., concur.