This case was tried in the superior court for Chehalis county by the late Judge Linn. Judge Linn was at the time the judge elected and presiding in Thurston *85county. He overruled the motion for a new trial, and an appeal was taken, but before the statement of facts was ready for settlement, he died. Attempting to comply with the statute, the Honorable. Mason Irwin, presiding judge for Chehalis county, called Honorable John R. Mitchell, who had been appointed and had qualified as Judge Linn’s successor, to settle the statement of facts. Bal. Code, § 5061 (P. C. §678), reads as follows:
“If the judge before whom the cause was pending or tried shall from any cause have ceased to be such judge he shall, notwithstanding, settle and certify, as the late judge, any bill of exceptions or statement of facts that it would be proper for him to settle and certify if he were still such judge, and such acts on his part shall have the same effect as if he were still in office; and he may be compelled by mandate so to do, as if still in office. If such judge shall die or remove from the state while in office or afterwards, within the time within which a bill of exceptions or statement of facts, in a cause that was pending or tried before him, might be settled and certified under the provisions of this chapter, and before having certified such bill or statement, such bill or statement may be settled by stipulation of the parties with the same effect as if duly settled and certified by such judge while still in office. But if the parties cannot agree, and if such judge, when removed from the state, does not attend within the state and settle and certify a bill of exceptions or statement of facts in case one has been duly proposed, his successor in office shall settle and certify such bill or statement in the manner in this chapter provided, and in so doing he shall be guided, so far as practicable, by the minutes taken by his predecessor in office, or by the stenographer, if one was in attendance on the court or judge, and may, in order to determine any disputed matter not sufficiently appearing upon such minutes, examine under oath the attorneys in the cause who were present at the trial or hearing, or any of them.”
We are asked to hold, (1) that the statute makes no provision for the certification of the facts occurring upon the trial, by a successor of the trial judge who may have died, and (2) that if a successor can so act, it was the duty of the *86judge presiding in Chehalis county to perform that function. The only reference to the probable death of a trial judge in the statute is found in the words “if such judge shall die or remove from the state.” The succeeding parts of the statute are drawn on the theory of removal from the state, and under a technical construction, it might be held that there was an omission affecting appellant’s' right of appeal. We think, however, that the clear intent of the statute is to cover any case, whether it be occasioned by death, disability, or removal from the state. To hold otherwise would deny a substantial right, if not a constitutional guaranty. The second point is also without merit. It is insisted that judges have successors, but courts are legal creations. Counsel says :
“When the case was tried it was tried by the judge of the superior court of Washington for Chehalis county, and while the personnel or judge of the court before whom the case was tried was a visiting judge, the successor in office of that visiting judge is not the one contemplated by the statute to settle and certify the statement of facts.”
This argument furnishes its own answer. If it be sound, Judge Mitchell while settling the statement of facts was as much the judge of the superior court of Chehalis county where he was presiding as was Judge Linn who tried the case, or as is Judge Irwin, and was therefore a proper judge to certify the statement of facts. The motion to dismiss the appeal is denied.
This is a proceeding brought by the Grays Harbor Boom Company to condemn certain lands lying adjacent to its boom grounds, a tidal slough known as “Jessie” slough, and a way along it for the convenience of its employees, and the shore rights of respondents, all of which it alleges are necessary to the prosecution of its enterprise as a public boom company. The petitioner is a boom company organized under the laws of the state of Washington, and for a number of years last past has operated a boom on the Hu,mptulips river. There have been a number of cases decided in *87this court involving the rights of the respective parties. In May, 1906, the company was enjoined by.the superior court for Chehalis county from further use of its boom grounds to the injury of the banks and shores of respondents’ lands. This case was affirmed on appeal. Lownsdale v. Grays Harbor Boom Co., 44 Wash. 699, 87 Pac. 943. The decision was later modified so as to permit appellant to institute condemnation proceedings. This it did. In State ex rel. Burrows v. Superior Court, 48 Wash. 277, 93 Pac. 423, the question of necessity and the extent of appellant’s right under its power of eminent domain was settled by this court, and the case sent back for trial on the question of damages. From an award in favor of respondents, the petitioner has appealed.
Numerous errors are assigned. All those which we regard as material go to the theory of damages entertained by respondents, and upon which the court permitted the evidence to go to the jury. The. evidence of the respective parties varied in a wide degree. Respondents’ witnesses fix the amount of the damages in sums running from $25,000 to $60,000, while the petitioner’s witnesses fixed the value of respondents’ lands in sums not exceeding $2,000. It is insisted by respondents that we should not inquire into the question of damages, or grant a new trial because the verdict was excessive. To sustain this contention, they cite the opinion of Judge Hanford in the case of United States v. Freeman, 113 Fed. 370, wherein he said, upon the authority, of Seattle & Montana R. Co. v. O’Meara, 4 Wash. 17, 29 Pac. .835; Tacoma v. State, 4 Wash. 64, 29 Pac. 847; Long v. Billings, 7 Wash. 267, 34 Pac. 936; and Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158, that:
“I adhere to the .ruling made by this court in the case of U. S. v. Tennant (D. C.) 93 Fed, 613, to the effect that in condemnation cases, in this state the law does not authorize the court of original, jurisdiction to set aside the verdict of a jury on the ground that the appraisement was erroneous or unfair. Upon a re-examination of the question I am con*88firmed in the opinion that the statutes of this state as expounded by its supreme court prescribe a special and peculiar mode of procedure distinct from the practice in civil actions. Therefore the provisions of the civil practice act authorizing, courts in which actions are tried to set aside verdicts for error in assessment of damages are not applicable, and do not authorize the same courts to grant new trials in condemnation cases.”
Without discussing the justice or propriety of that decision or the cases upon which it rests, the record indicates to us that it should not be applied here. Admitting that the rule is well founded, the cases do not hold that a verdict concludes the law of the case. Although if a case be tried without error a court should be reluctant to grant a new trial because of excessive damages, when an improper element of damages is injected into the case, it becomes the duty of the court to set aside the verdict. Petitioner was entitled to have the question of damages submitted on a proper measure. This the court did not do. Without quoting from .the evidence, it is enough to say that the witnesses on behalf of respondents base their estimate of damages, in part at least, upon the value of the property as a boom site, or in consideration of its adaptability for a mill site or for commercial purposes. A motion was made to strike this testimony, and it was overruled by the court. The court did, however, instruct the jury as follows:
“In estimating the value or damage you must not take into consideration the special value to the company, by reason of its necessity, but the market value. Nor should you take into consideration, the value of defendant’s property as a boom site.”
“The waters of the Humptulips river and Jessie Slough in front of defendant’s lands, are navigable waters, within the meaning of the law, and defendant, by reason of the ownership of the lands abutting on said river and slough, would have no proprietary rights in any boom site furnished by the channels of said waters, and would not be entitled to have the values of such boom site considered in estimating the value *89of his lands, as his proprietary interest does not come below the line of ordinary high tide.”
These instructions correctly stated the law. The right of maintaining booms in a navigable tidal stream of the state is not a right incident or appurtenant to the uplands. Tide lands belonging primarify to the state, and subject to the rights of navigation to be determined by the secretary of war, may be granted or sold by the state without reference to any assertion of riparian ownership in the land conveyed. This boom site having been granted by the state, the loss of its use cannot be considered as an element of damages in a suit to condemn the rights and privileges appurtenant to the shore line. Hence, the rule applicable to the condemnation of land along nontidal streams is not pertinent, and the testimony should have been stricken by the court. The record indicates that the amount returned could not have been found by the jury without considering the objectionable testimony. A trial upon one theory and instructions of the court founded upon an entirely different theory present a most unusual situation, and under the circumstances of this particular case we are unable to say that the error of the court was cured by his instruction. The court had refused, in the presence of the jury, to strike out the incompetent testimony, and the jury might have been, and probably was, misled as to its effect. It was the duty of the court to try the case upon, as well as instruct, the law of the case. It was his duty to take away from the jury all of the testimony predicated upon the value of the property as a boom site, by specially calling their attention to his errors occurring on the trial; or when a verdict was rendered showing that the jury must have considered a wrong measure of damages, he should have granted a new trial. We have not overlooked the fact that some of the witnesses spoke of the property as valuable for commercial purposes or for a mill site. But this will not cure the error of the court. Respondents have all the rights in their lands that they ever had, and whatever they may be, they are *90subordinate to and subject- to the rights of the grantee of the state to maintain boom grounds in front of them. If, therefore, the probable' value of the land for a mill site or for commercial purposes depends in any degree on the use of the tide lands now embraced in the boom site, it could not be considered a proper element of damages.
The trial court seems to have proceeded upon the theory that the general rights incident to riparian ownership along navigable streams apply in this case. Respondents cite a nuniber of cases to sustain this theory, but all of them seem to turn on the theory that the owner of the land had title, not only to the upland but the land under the water, a condition which is not here present, and cannot be from the very nature of the case. The state has asserted title to the lands over which the tide ebbs and flows, and respondents’ title carries them no further than the line of ordinary high tide. It would be useless, then, to review the authorities relied upon by respondents. The rule pertaining to the rights incident to ownership of lands along tidal streams over which the state had or might assert its ownership, was before the court in the early case of Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632. A careful review of the authorities impelled this conclusion:
“The result of our investigation of the authorities leads us to the conclusion that riparian proprietors on- the shore of the navigable waters of the state have no special or peculiar rights therein as an incident to their estate. To hold otherwise would be to deny the power of the state to deal with its own property as it may deem best for the public good.- If the state cannot exercise its constitutional right to erect wharves and other structures upon its public waters in aid of navigation without the consent of adjoining owners, it is obviously deficient in the powers of self-development, which every government is supposed to possess — a proposition to which we cannot assent. See Galveston v. Menard, 23 Tex. 349. Nor do we think this view in any way conflicts with the constitution of the state, but, on the contrary, we believe it is in strict harmony with-it, when all'its parts are construed *91together. We cannot think that the building by the state or its grantees of wharves upon shores of navigable waters would constitute either a taking or damaging of private property for public use, in contemplation of the constitution.”
We are asked to distinguish this case in favor of respondents, upon the theory that the Humptulips river is a navigable stream, and not a bay, inlet, or arm of the sea. The right of the state is not to be measured by the name or character of the waters, but by the physical condition. Does the tide ebb and flow in the stream under discussion? If so, the constitution, § 1, art. 17, expressly asserts title “to the beds and shores of all navigable waters in the state, up to and including the line of ordinary high tide, in the waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.” While the doctrine of the Eiseribach case has been at times overlooked by this court, thus permitting an element of confusion to arise in our decisions, it is so clearly sustained by reason and authority, and so securely rests upon the constitutional provision just cited, that we consider it controlling in all cases of this character. In the recent cases of Muir v. Johnson, 49 Wash. 66, 94 Pac. 899, and Brace Hergert Mill Co. v. State, 49 Wash. 326, 95 Pac. 278, it is cited as controlling. In the latter case the decisions of this court, as well as those of the supreme court of the United States, are collected, and need no further citation or review.
If this were not true as a matter of law, the testimony upon this feature of the case is too vague and uncertain to warrant a verdict. It is not shown that the use of respondents’ lands for a sawmill is contemplated or even probable within any reasonable time, or that it could be so used independently of the lands occupied by petitioner.' The contemplated use, in proper cases, must not only be available but valuable. In this connection an available use means a possible use, not a use contingent upon the abandonment of the use of adjoining property engaged by another in the public service of the *92state, or upon conditions remote, uncertain, and speculative. Chicago, Milwaukee etc. R. Co. v. Alexander, 47 Wash. 131, 91 Pac. 626.
So far, then, as the element of commercial use becomes a subject for our review, the lands of respondents are not taken or damaged in the general sense. Damages, if any, are those resulting to shore rights, by erosion or flooding, for land actually taken, and the added inconveniences, if any, to the landowner in getting to and from the navigable channel reserved by the secretary of war. They grow out of, as they must in all cases, the nature of the use to which the stream will be put by appellant. Upon this theory, the admission of evidence as to the price paid by respondents in 1891, and accumulated interest on the purchase price, was immaterial and prejudicial error on the part of the court. The purchase was not so recent that any presumption of value at the present time could flow therefrom. 2 Lewis, Eminent Domain (2d ed.), 444; Denver etc. R. Co. v. Schmitt, 11 Colo. 66, 16 Pac. 842; Dietrichs v. Lmcoln & N. W. R. Co., 12 Neb. 225, 10 N. W. 718; Omaha South R. Co. v. Todd, 39 Neb. 818, 58 N. W. 289; Lanquist v. Chicago, 200 Ill. 69, 65 N. E. 681. The present value of the property at the time of the trial, and the consequent diminution in value by reason of the proposed appropriation, is the true basis for estimating damages. Grays Harbor Puget Sound R. Co. v. Kauppinen, 53 Wash. 238, 101 Pac. 835.
We are asked to hold that no damages for which the law will render compensation can result to respondents by reason of such erosions as are necessarily caused by the proper maintenance and operation of appellant’s boom; this on the theory that the boom is a lawful structure, and that no consequential damages can result from its use. A number of cases are cited, none of which are persuasive. They discuss questions involving the erection of piers, bridges, or obstructions to navigation under Federal authority. No land and no right incident to ownership was taken. In this case respondents *93are the owners of the shore line and the banks of the stream and, while their interests must give way to the public interest, they are entitled to damages accruing from the changed use of the stream, even though the proposed use be a lawful one. Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac. 937; Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 102 Am. St. 905, 70 L. R. A. 272.
The judgment of the lower court is reversed, and a new trial ordered.
Fullerton, Morris, Parker, Mount, and Crow, JJ., concur.