Commercial Waterway District No. 2 of King | not error to deny the peremptory challenge County v. Seattle Factory Sites Co., 135 Pac. unless all joined therein. 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 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 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.

[1] 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. City of 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 founded. The section of the statute providing for peremptory challenges (Bal. Code, § 4979; Pierce's Code § 593), 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 al

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

[2] 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 section 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, 14 Sup. Ct. 548, 38 L Ed. 331, 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 Gray's Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 Pac. 1041, 104 Pac. 267, this

one of two theories with reference to tide river does not give them any rights either and shore lands. The one that the state will in the bed of the stream or in the waters recognize a riparian right in the upland own- thereof. er 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 rel. Ham v. Superior Court, 70 Wash. 442, 126 Pac. 945.

same. No authorities are cited to this propo- | Montana R. Co. v. Roeder, 30 Wash. 244, 70 sition by the appellants, and it seems to us that the position of the appellants is not tenable.

[4] 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 crossexamination, 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 Pac. 1060.

Pac. 498, 94 Am. St. Rep. 864. See, also, Murphy v. C. M. & St. P. Ry. 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 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 17 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 build

[5] 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 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 witnessing was constructed for the purpose of genwho has testified before you has willfully 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

erating 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 con

put in operation in the spring of 1907, and | en for another public use without legislawas 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 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.

tive grant, either in express terms or by necessary implication. There can be no doubt about this being the rule. Section 7 of the act of 1911 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." 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." It seems to us that the power is there directly conferred, and at least by necessary implica'tion 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.

[8] 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% 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 Du[7] The appellants cite cases to the ef- wamish river." It is apparent from a readfect that it is the established rule that prop-ing of the descriptions upon these plats that erty devoted to a public use may not be tak- the description of Queen addition extended

We shall notice these contentions in their order as stated.

[6] It is first contended that, because the appellants' property was already devoted to a public use, it cannot be condemned.

137 P.-52

only to the right bank of the Duwamish riv- in the meaning of the Constitution, a taking er, and that the description of Queen addi- of private property for public use, but only a tion supplemental extended to the meanders consequential injury to a right which must of the Duwamish river and along the mean- be enjoyed, as was said in the Yates Case ders thereof. We are unable to determine [10 Wall. 497, 19 L. Ed. 984], 'in due subjec from the record whether these meanders tion to the rights of the public.'" were in the bed of the river or upon the bank, but that fact 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 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.