Freeman

(after stating the facts as above). The point in the case being, who has the title and right of possession to the dust and slag involved, we will'first consider the rights of the parties under the contract of August 14, 1906. The recitals contained in that agreement refer to the Smelting Company as organized for the purpose of carrying on a general smelting and reduction business and purposes incidental thereto, and to the Copper Company as a producer of ores carrying copper and other valuable materials. Reference is also made to the fact that the Copper Company had acquired a valuable smelter site, and to the desire of tire Smelting Company to acquire the smelter site and “have erected thereon a smelter plant,” and to the special desire of the Smelting Company “to obtain a contract for the ores of the Copper Company in order to have a basis On which to operate the smelter for outside customer’s ores.” The consideration for the agreement was based upon the covenants and agreements made and to be kept by the parties. The covenant of the Copper Company was to erect a smelting plant, and, upon completion, to sell and convey it to the Smelting Company, with certain land, embracing-640…