dissenting,
I concur in what is said in the dissent of Judge MAXj WELL, but further, I am of the opinion (hat, in the ab sence of a statute to the contrary, the feature of the con' tract sued upon obligating the defendant company to remove its track to enable the plaintiffs to mine phosphate deposits thereunder is void as against public policy; but even if it were not, I think that from the terms of the con*585tract itself, as well as for reasons of sound public policy, the burden was upon the plaintiffs to ascertain definitely in advance at what particular point or points they desired to. mine the mineral deposits from under the track, and then to give notice to the defendant company to remove its tracks from such point or points so selected, specifying in the notice served, with accurate definiteness and certainty, the particular point or points from which they desired the tracks removed, and until such definite and particular notice was served I do not think the defendant company was under any obligation to remove its track, •or that the plaintiffs had any right to recover damage for its failure to do so.