(dissenting): I cannot concur fully in the majority opinion. The time presently available makes it impossible, however, to do more than state briefly my views on some of the issues involved.
Both in the syllabus and in the body of the opinion the fact is stressed that the land of the claimants has not been actually taken or appropriated by the city. The matter is treated largely as though we were dealing with an ordinary condemnation statute or proceeding, but that is not the situation, and the authorities quoted relative to ordinary condemnation proceedings are not in point. The statute *348under which the levee was constructed by the city as part of a flood-protection project (G. S. 1935, 12-635 to 12-646) is much broader than the ordinary condemnation statute. It specifically provides in section 12-639 that the appraisers shall “assess all damages to any and all property that will be injured or damaged by reason of said improvement.” Certainly such language does not limit the assessment of damages to property that is actually appropriated.
The majority opinion seems also to proceed largely upon the theory that the prospective injury of which complaint is made is “incidental” and “indirect.” I see nothing “incidental” or “indirect” about the injury which claimants allege will result to their land. The allegations are that the very purpose of the levee is to hold back floodwaters which will flood claimants’ land and that the damage to their land will be the direct result. If such flooding of claimants’ land will inevitably result, as alleged, by construction of the levee, the damage will certainly not be incidental or indirect. Accordingly, I do not think the cases cited in the majority opinion on this point are applicable.
Statements made in the opinion seem to overlook the fact that the case is here on appeal from an order overruling the demurrer to the objections submitted by the claimants. Being here on demurrer, the allegations must be taken as true. It is not only alleged that the land of the claimants will be overflowed and damaged as a direct result of the erection of the levee, but that the report of the engineers employed by the city in connection with this project states that claimants’ land will be so injured. I am not here discussing the question of measure of damages or damages that may be highly speculative, but the right of claimants to be heard on their definite allegations of injury and damages directly resulting from the construction of the levee. -The majority opinion comments on the allegations of claimants that their land lies close to the city limits and has potential value for future development, the comment being to the effect that there is little probability of such development in the near future. But claimants also allege that their land is fertile farm land which will be inundated. Moreover, as already stated, the question is here on demurrer, and questions of fact as to land values or damages are not here presented for our determination.
I think the trial court was in error in holding that claimants were entitled to separate trials by jury. When they proceeded under *349the statute they were bound by the provisions of the statute. The statute (§ 12-643) provides that “all objections that shall be filed shall be heard and determined by said court as one proceeding.”
I concur in the last two paragraphs of the majority opinion. If claimants are to be barred from proceeding under the statute and present evidence in support of their allegations that their land will be directly damaged as a result of the levee, they certainly must have a right to bring an action to recover damages that may subsequently be suffered from actual overflow from the erection of the levee.