The court below found no facts and it does not appear that it was requested to do so. Therefore, the ground upon which it exercised its discretionary power to dissolve the temporary restraining order is not disclosed.
Ordinarily, a temporary restraining order will be continued to the hearing if there is “probable cause for supposing that the plaintiff will be able to maintain his primary equity and there is a reasonable apprehension of irreparable loss unless it remains in force, or if in the opinion of the court it appears reasonably necessary to protect the plaintiff’s right until the controversy between him and the defendant can be determined.” Cobb v. Glegg, 137 N.C. 153, 49 S.E. 80; Seip v. Wright, 173 N.C. 14, 91 S.E. 359; Boushiar v. Willis, 207 N.C. 511, 177 S.E. 632; Porter v. Insurance Co., 207 N.C. 646, 178 S.E. 223; Hare v. Hare, 207 N.C. 849, 178 S.E. 545; Little v. Trust Co., 208 N.C. 726, 182 S.E. 491; Bailey v. Bryson, 214 N.C. 212, 198 S.E. 622; Boone v. Boone, 217 N.C. 722, 9 S.E. 2d 383.
Likewise, when a continuing trespass is sought to be enjoined and the facts are in dispute and can be determined only by a jury, the courts will ordinarily continue the cause to the hearing. Norfolk Southern R. Co. v. Rapid Transit Co., 195 N.C. 305, 141 S.E. 882. Even so, “whether the Court will dissolve an injunction on hearing the answer only or will order the bill to stand over for proofs, much must depend upon the sound discretion of the judge who is to decide the question.” James v. Lemly, 37 N.C. 278; McCorkle v. Brem, 76 N.C. 407; Cobb v. Clegg, supra.
In Lewis v. Lumber Co., 99 N.C. 11, 5 S.E. 19, the defendant was engaged in the manufacture of lumber. The plaintiff obtained an injunction restraining the defendant from cutting timber on certain lands, the title to which was claimed by both parties. Upon appeal, the Court said : “The business is a legitimate one, and ought not to be arrested, especially if this can be avoided consistently with the rights of the plaintiff. Indeed, it is against the policy of the law to restrain industries and lawful enterprises. It ought not to be done, unless in extreme cases, certainly when *504it may be avoided.” Hurwitz v. Sand Co., 189 N.C. 1, 126 S.E. 171; Tobacco Growers’ Ass’n. v. Bland, 187 N.C. 356, 121 S.E. 636; Stewart v. Munger, 174 N.C. 402, 93 S.E. 927; Lumber Co. v. Wallace, 93 N.C. 22.
Bynum, J., in speaking for the Court in Perry v. Michaux, 79 N.C. 94, said: “If upon the hearing of an answer the statements are such as to leave upon the mind of the Court a reasonable doubt whether the plaintiff’s equity is sufficiently negatived, the injunction will not be dissolved, but be continued to the hearing. . . . But it is also a well settled rule that when by the answer the plaintiff’s whole equity is denied, and the statement in the answer is credible and exhibits no attempt to evade the material charges in the complaint, an injunction on motion will be dissolved.” Riggsbee v. Durham, 94 N.C. 800; Tobacco Growers’ Ass’n. v. Harvey & Son Co., 189 N.C. 494, 127 S.E. 545, 47 A.L.R. 928.
In the case of Tobacco Growers’ Ass’n. v. Bland, supra, this Court quoted with approval from the opinion in American Smelting Co. v. Godfrey, 158 F. 225, 14 Ann. Cas. 8, the following: “It may be stated as a general rule that in determining whether to grant an injunction it is the duty of the Court to consider the inconvenience and damage that will result to the defendant as well as the benefit that will accrue to the complainant by granting the writ. . . . Upon balancing the conveniences, if it appears that an injunction would be productive of greater injury than would result from its denial, it should not be granted.” Huskins v. Hospital, ante, 357. Naturally, this same reasoning would apply in determining whether or not a temporary restraining order should be continued to the hearing. We presume the court below in exercising its discretion took all these factors into consideration; therefore, we will not disturb his ruling. Neither are we inadvertent to the fact that we are not bound by the findings or ruling of the judge below in injunction cases, but may look into and review the evidence on appeal. Even so, there is a presumption that the judgment entered below is correct, and the burden is upon the appellant to assign and show error. Little v. Trust Co., supra; Teeter v. Teeter, 205 N.C. 438, 171 S.E. 620; Seip v. Wright, supra; Hyatt v. DeHart, 140 N.C. 270, 52 S.E. 781. However, if the record disclosed affirmatively that the ruling of the court below was based on the grounds urged by the defendant in his brief, we would be confronted with an entirely different question from that now before us.
The defendant admits in his answer that in the operation of his quarry, occasionally small stones are thrown over- and upon the lands of the plaintiff. He alleges, however, in his answer and contends in his brief that if the plaintiff has been damaged as alleged in his complaint, he is not entitled to obtain any relief in this action, but must proceed by motion in the cause in the case instituted in 1947 by his brother, C. E. Lance. *505Moreover, be contends tbat tbe acts complained of must be found to be violative of tbe provisions contained in tbe judgment entered in tbat action; otherwise be is estopped from obtaining any relief.
In support of tbe above position tbe defendant cites in bis brief tbe case of Faison v. McIlwaine, 12 N.C. 312, in wbicb it is stated: “It is well established in this state tbat no party to a suit is permitted by new and independent action praying for an injunction to seek any relief wbicb be might obtain by motion in tbe original action . . . tbe present plaintiff might have obtained tbe relief be seeks by a motion in tbe original action, as upon audita querela, wbicb tbe judge would have allowed on such terms as might be just.” Certainly this is a correct statement of tbe law, but it applies only to parties who were parties to tbe original suit.
We do not concur in tbe view tbat this plaintiff is bound by tbe action instituted in 1947 by bis brother, C. E. Lance. Tbe plaintiff was not a party to tbat action and is not bound by it. One tenant in common may sue alone and recover possession of tbe common property, as against a third party claiming adversely to him and bis cotenants, even though be can prove title to only an undivided interest, since each tenant in common is entitled to possession of tbe whole, except as against a cotenant. Yancey v. Greenlee, 90 N.C. 317; Thames v. Jones, 97 N.C. 121, 1 S.E. 692; Gilchrist v. Middleton, 107 N.C. 663, 12 S.E. 85; Moody v. Johnson, 112 N.C. 804, 17 S.E. 579; Morehead v. Hall, 126 N.C. 213, 35 S.E. 428; Winborne v. Lumber Co., 130 N.C. 32, 40 S.E. 825; Shelton v. Wilson, 131 N.C. 499, 42 S.E. 937; Taylor v. Meadows, 169 N.C. 124, 85 S.E. 1; Davis v. Morgan, 228 N.C. 78, 44 S.E. 2d 593; Locklear v. Oxendine, 233 N.C. 710, 65 S.E. 2d 673. However, one tenant in common cannot recover damages for trespass against a third party in excess of bis pro rata interest in tbe common property. Winborne v. Lumber Co., supra. Cf. Hinson v. Shugart, 224 N.C. 207, 29 S.E. 2d 694.
In tbe case of Winborne v. Lumber Co., supra, Clark, J. (later Chief Justice), said: “As to damages for cutting tbe timber, tbe plaintiff was entitled to recover only one-fifth, since this judgment would not be a bar to an action by tbe other four tenants in common for their pro rata part of tbe damages.”
As stated in Huskins v. Hospital, supra, our ruling on tbe action of tbe court below, dissolving tbe temporary restraining order, will have no bearing whatever on tbe rights of tbe parties when the action is tried on its merits.
For tbe reasons given, tbe action in tbe court below, in dissolving tbe temporary restraining order, is