It is not alleged in the affidavits, nor was it contended upon the argument, that the defendant company is insolvent; on the contrary, it seems to be conceded that it was able to answer in damages for the alleged trespass on the plaintiff’s right of way. Though the fact of such insolvency is not decisive of the right to extraordinary relief, yet in some cases it becomes material. If it shall be found upon an investigation before a jury that the defendant has constructed a road-bed and erected a bridge on land to which the plaintiff has the superior title, and has placed the bridge at the only eligible location on the right of way previously acquired by plaintiff, then, upon his own showing, the latter will suffer no irreparable injury, since it will recover the road-bed in its finished condition and compensation for any damage incident to the wrongful detention of the possession. Railroad Co. v. Railroad Co., 88 N. C., 79.
If, as counsel insist, the case at bar is distinguishable from Railroad v. Railroad, supra, in that the plaintiff is ready and waiting to prosecute the work of constructing its road-bed at this very point across the river, the answer is that the presiding Judge has found as a fact, upon the affidavits and proofs before him, that there is “enough space between defendant’s crossing on Tyson’s Creek and *663the bank of Deep Diver at the mouth of said creek to construct another road-bed below the defendant’s railroad, without interfering with the defendant’s road-bed and trestle.” Meantime his Honor orders that the defendant shall occupy at Tyson’s Creek and the approaches thereto only the road-bed constructed and in process of construction, the, necessary approaches thereto and so much space south of the center of its road-bed as it may be found actually necessary to occupy in the construction of its road. . This order is equivalent to a refusal of the injunction for which plaintiff prayed as to the line actually adopted and for the most part constructed on the land described in the affidavit, but to granting the order as to all disputed territory lying beyond and not necessary to the construction and use of the defendant’s located line; and therefore the case of Durham v. Railroad, 104 N. C., 261, where the Judge below vacated the restraining order as to all that portion of the street lying south of a designated boundary and continued the injunction to the hearing as to the road-bed, must govern our decision in the case before us.
Instead of ex-parte testimony as to all the questions upon which the rights of the parties depend, we shalEhave after the trial the findings of a jury, and if it should appear from the verdict that the plaintiff has the better right to the road-bed the law will allow him ample compensation in damages to cover liis losses, including the additional cost of another crossing over the creek if it should construct it. There is No Error.