(after stating the facts as above). Though these are actions for damages occasioned by the same flood which was involved in the prior cases of Soules v. Northern P. R. Co. 34 N. D. 7, L.R.A. 1917A, 501, 157 N. W. 823, and Reichert v. Northern P. R. Co. — N. D. —, 167 N. W. 127, the buildings which are here claimed to have been flooded were situated at a greater distance from and at a higher elevation than those which were therein injured, and it may well have been that the waters flowing back from the railway culvert or embankment would have flooded the buildings on this lower area while not those in the cases which are before us.
The cases, however, must be decided upon the law as announced in the prior case of Reichert v. Northern P. R. Co. supra. According to that case the material questions to be decided are: Was the waterway or drainway the natural and accustomed channel for the escape of surface waters, and did the railway company so obstruct the same *322that, after such obstruction, it was unable to carry off waters, which it would have formerly carried, and did such obstruction occasion injury to the plaintijfsf
The rule seems to be well established that “the failure of a special verdict to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact.” We do not, however, construe this rale as the defendant evidently construed it, and that is, that such failure will in all cases be construed against the plaintiff, who has, of course, the general burden of proof in all actions of negligence, but rather as against the party whether, plaintiff or defendant, upon whom the particular burden rests to establish the particular fact, and whether such fact is necessary to the plaintiffs’ case or necessary merely to the defense of the defendant. See Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741; Wabash R. Co. v. Ray, 152 Ind. 392, 51 N. E. 920; Cleveland, C. C. & St. L. R. Co. v. Miller, 149 Ind. 490, 49 N. E. 445; Atchison, T. & S. F. R. Co. v. McCandliss, 33 Kan. 366, 6 Pac. 587, 3 Am. Neg. Cas. 430; Croan v. Baden, 73 Kan. 364, 85 Pac. 532; Mulvaney v. Burroughs, 152 Iowa, 439, 132 N. W. 873; Dougherty v. Snyder, 97 Mo. App. 495, 71 S. W. 463; Atchison, T. & S. F. R. Co. v. Johnson, 3 Okla. 41, 41 Pac. 641, 6 Am. Neg. Cas. 187; Hayes v. Smith, 15 Ohio C. C. 300, 8 Ohio C. D. 92; State ex rel. Monroe County v. Jackson, 52 Ind. App. 254, 100 N. E. 479; Reeves v. Chicago, M. & St. P. R. Co. 24 S. D. 84, 123 N. W. 498; Flannery v. Kansas City St. J. & C. B. R. Co. 23 Mo. App. 120; Allen v. Lizer, 9 Kan. App. 548, 58 Pac. 238.
Under this rale the special verdict found that the railroad embankment crossed a natural channel for the drainage of surface waters; that the 4-foot culvert maintained by the defendant, if unobstructed by any floating street platform or other debris, was not of sufficient size and capacity to take care of all of the rain that fell on July 28, 1914, up to 6: 30 o’clock on that day; that the running off of the water of the culvert under the track was not obstructed or blocked by the-street culvert crossing and other debris referred to in the testimony; that the storm of July 28, 1914, was such a storm that might reasonably be expected to occur in the vicinity; that an ordinary prudent man residing in this region should have anticipated from his general *323experience snob a storm and rainfall; tbat tbe plaintiffs sustained damages because of tbe flooding of tbeir premises on July 28, 1914; tbat tbe amount of tbeir damages was: Vallancy, $700; Weir, $400; Boulger & Hughes, $2,300; Zeismer, $600.
So far there is no finding tbat tbe flooding of tbe property of tbe plaintiffs was due to tbe water backing up from tbe railroad embankment or from tbe culvert under tbe same, and tbe only finding in relation thereto are tbe following questions and answers: ¡
Q. Is it just as probable tbat tbe flooding of tbe Masonic Temple basement and tbe damages to plaintiffs’ property was occasioned by causes other than tbe negligence of tbe defendant railroad company, if you find said railroad company was negligent ?
A. No.
Q. This question and answer is entirely unsatisfactory, as tbe question is clearly double, and prior thereto there is no specific finding of negligence. Following is tbe specific finding:
Q. Did water coming down either Sim street or First street, north from tbe west, flow over tbe sidewalk and into tbe basement of tbe building occupied by Boulger & Hughes, thus damaging plaintiff’s property ?
A. Yes.
If this question and answer means anything, it means tbat tbe water on its way down from tbe elevation above flowed onto tbe plaintiffs’ property, and it nowhere bolds tbat it was a defective culvert tbat occasioned tbe damage, or tbat tbe water so flowing was backed up from tbe embankment.
Following it are tbe following questions:
Q. Did any water otherwise than tbat backed up from tbe railroad culvert run into tbe basements of tbe Masonic Temple, thus damaging plaintiff’s property?
A. Yes.
Q. Did water run into tbe basements of tbe Masonic Temple before tbe railroad culvert under tbe tracks was running full ?
A. Yes.
Q. If you answer number 16 in tbe affirmative, about bow much water bad run in? ; -- ' »
A. Do not know.
*324One of the principal defenses of the defendant is that the flooding was not occasioned by the embankment or the 4-foot culvert, but by the water running into the basements while coming down the hills and piling up upon the street. There is no attempt in the case to show, and there is no finding, as to how much of the damage was occasioned by the waters flowing down the hills and before it reached the railroad track, and how much was occasioned by the water flooding back from the railroad track, if, in fact, any there was. And the undisputed testimony shows that there was a large amount of water in the basement before any is claimed to have come from the railroad embankment.
It is well established that where it appears that part of the damage was caused by a third party or a third cause, the plaintiff, unless a conspiracy or joint tort can be proved, can only recover against the defendant such damages as he can show were occasioned by the defendants’ wrong.
As was well said in the case of Watson v. Colusa-Parrot Min. & Smelting Co. 31 Mont. 513, 79 Pac. 15. “The defendant’s act being several when it was committed cannot be made joint because of the consequence which followed in connection with others who had done the same or a similar act.” It is true that it is difficult to separate the injury, but that furnishes no reason why one tort-feasor should be liable for the act of others who have no association and who do not act in concert with him. If the law was otherwise, the one who did the least might be liable for damages of others, damage exceeding the amount for which he really was chargeable in any means to enforce éontribution or to adjust the amount among the different parties. So, also, proof of an act committed by one person would entitle the plaintiff to recover for all damages sustained by the acts of others who severally and independently may have contributed to the injury. Such a law cannot be upheld upon any sound principle of law. 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. See also Newark v. Chestnut Hill Land Co. 77 N. J. Eq. 23, 75 Atl. 645; McDonough v. Russell-Miller Mill. Co. 38 N. D. 465, 165 N. W. 504; Chybowski v. Bucyrus Co. 127 Wis. 332, 7 L.R.A.(N.S.) 357, 106 N. W. 833; *325Meehan v. Great Northern R. Co. 13 N. D. 443, 101 N. W. 183; Adams v. Bunker Hill & S. Min. Co. 12 Idaho, 637, 11 L.R.A.(N.S.) 845, 89 Pac. 624; Brown v. Chicago, B. & Q. R. Co. 195 Fed. 1007.
We find no inconsistency in the special findings, and the respondents themselves contend that there are none. Even though finding No. 6 is somewhat confusing on account of the double nature of the question, it is well established that positive findings finding material facts, which are conclusive of the controversy, overcome those which are merely incidental. Robinson v. Washburn, 81 Wis. 404, 51 N. W. 578.
This being the case the court, rather than ordering new trials, should have granted the plaintiffs’ motions for judgments upon the special findings; that is to say, if the orders appealed from were appealable at all, and this court has jurisdiction in the premises.
We are of the opinion that the orders were appealable. Section 7841 of the Compiled Laws of 1913 makes, among others, orders ap-pealable, which affect “a substantial right . . . when such order in effect determines the action and prevents a judgment from which an appeal might be taken.” It also makes appealable orders granting or refusing a new trial or sustaining or overruling a demurrer, and an order which “involves the merits of an action or some part thereof.”
We are of the opinion that the orders overruling the motions for judgments on the special verdicts both involved the merits of the actions and prevented the rendition of judgments- from which appeals might be taken, coupled as they were with the court’s granting new trials on his own motion.
In the cases at bar both parties moved for judgments on the special verdicts of the jury. The cases were not similar to that of Persons v. Simons, 1 N. D. 243, 46 N. W. 969, where only special interrogatories were involved. The special verdicts covered all of the material issues of the cases and their findings were deteiminative of them. The defendant was entitled to the reception of these verdicts and to have judgments entered thereon. They were not cases of special interrogatories, where general verdicts could have been received and judgments entered in spite of the special findings. The orders, therefore, both involved the merits of the actions and prevented the rendition of *326judgments from which appeals might be taken. Robinson v. Washburn, supra.
The orders appealed from are reversed, and the causes are remanded, with directions to enter judgments for the defendant, dismissing the several complaints.
Geaoe, J. I concur in the result.