The charter of this company is older than the Code, so that it cannot be controlled by section 753 of the Code. Whether this was the common law, seems to be somewhat doubtful. The charter of the company is a grant from the State to run their road, in a general direction, from point to point. If, in doing this, it becomes necessary to use a pub-*202lie road, and the authorities, clothed by law with power over such roads or streets, consent, we see nothing in principle to sustain the denial of the power of the company to use the highway, paying to parties, having legal rights, any compensation they may be entitled to: See 4 Cushing, 63.
We are clearly satisfied that the Judge, in his charge to the jury, gave too limited a construction to the submission. The case, as presented, is not, in a strict sense, a submission to arbitration. It is a compulsory proceeding, as provided by the charter, and the whole matter left to the commissioner is the compensation, due for the seizure of the property of a citizen. It is the law, rather than the submission, which presents the issue. True, if there was a distinct, intended admission of any fact in the agreement, to save the necessity of proof, made avowedly, the parties would be bound.
The proof here showed, very conclusively, that no part of the street was used. It seems very absurd, with this proof before the Court, to say that the verdict is to be based on the agreed statement that the street was used. We do not think the form of this submission, or the words used, fairly bear such a limited construction. The real matter at issue, under it is, has the plaintiff’s property or rights been so appropriated by the company as to entitle him to compensation ? and if so, what compensation ? and any evidence going to elucidate that issue is competent. We do not, in this case, decide the great question made in the record, because, whilst the Court is unanimous that this judgment is error, it is not exactly agreed upon the question as to whether the owners of property, lying on a street, who are not the owners of the fee in the street, have any such right in the street as entitles them to compensation.
The question arises, in a very direct way, in another case, (see South Carolina Railroad Company vs. Steiner, post,) pending before this Court, from the Augusta Circuit, and in deciding that case, we will decide what we understand to be the law upon the point. Judgment reversed.