The fact that it is difficult to separate the injury done by each one from others should furnish no reason for holding that one tort-feasor should be liable for acts of others with whom he is not acting in concert.Id. A half-century later, in Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967), this court shifted course and declined to apply Boulger in allocating tort damages from concurrent acts of several tort-feasors who did not act in concert. The Thorson court allowed the claimants to recover all of the damages from the sued tort-feasor, treating that tort-feasor as jointly and severally liable, because each concurrent tort-feasor could recover contribution from others not sued under NDCC 32-38-01.

Negligence need not be proved when the action is based upon nuisance. Thorson v. City of Minot, 153 N.W.2d 764, 769 (N.D. 1967); and Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588, 596-597 (1953). In order to prevail in the present case using the act of God defense, the City was required to prove that the rainfall, runoff, and flooding were unprecedented and extraordinary and could not have been reasonably anticipated and provided against.

The harms to the plaintiffs' property in this case are not "distinct" and it is questionable whether there is a "reasonable basis" for determining the contribution of each cause in a case such as this. See Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967). In any event, section 433B of the Restatement (Second) of Torts (1965) places the burden of proof as to the appropriate apportionment on the party seeking to limit his liability on the ground that the harm is capable of apportionment.

We have previously distinguished between nuisance and negligence principles, and it is well settled that a nuisance may be created wholly without negligence. Jamestown Plumbing Heating Co. v. City of Jamestown, 164 N.W.2d 355, 361 (N.D. 1968); Thorson v. City of Minot, 153 N.W.2d 764, 769 (N.D. 1967); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 510, 57 N.W.2d 588, 596 (1953). As we stated in Kinnischtzke, supra, 79 N.D. at 510, 57 N.W.2d at 596:

We are not implying that we believe that GTA's activities constituted a nuisance. The facts of this case are quite dissimilar to Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967). In this respect it is undisputed the GTA feed plant had been in operation since 1958 and that Harmon Motors had operated its car dealership since 1975. Additionally, Harmon Motors had operated its dealership in the same location for two years before the display lot was expanded.

McCuistion v. Huachuca City, 122 Ariz. 341, 594 P.2d 1037 (Ct.App. 1979); Fairwood Bluffs Conservancy Dist. v. Imel, 146 Ind. App. 352, 255 N.E.2d 674 (Ct.App. 1970); Hartzlerv. Town of Kalona, 218 N.W.2d 608 (Iowa 1974); Thorson v. City of Minot, 153 N.W.2d 764 (N.D. 1967). See cases collected in Annotation, "Sewage Disposal Plant as Nuisance," 40 A.L.R.2d 1177 (1955).