Tbe contention is tbat tbe complaint states good grounds for tbe equitable relief asked, because tbe defendants seek to fasten a claim upon plaintiff’s waterworks system, to wbicb they are not entitled in law under tbe facts and circumstances alleged, and tbat, unless defendants be restrained, tbeir conduct in tbis respect will injuriously and vexatiously affect plaintiff’s property rights and thus subject it to irreparable losses. Plaintiff therefore asks that it be protected by order of tbe court preventing defendants from taking any further steps in tbe matter, and tbat tbe court declare tbe claim of a right to purchase to be without foundation in law. Tbis demand of tbe plaintiff is made upon tbe several grounds alleged in tbe complaint, wbicb are: (1) Tbat tbe city bad no power to contract for the purchase of tbe waterworks, and hence tbe provisions of tbe ordinance respecting it are ineffectual and void; (2) tbat, if it bad any such *418power at the time the ordinance was adopted, it has exhausted its right to effect a purchase thereunder by the proceeding of 1900; (3) that, if it had any such right, it has by the agreement of February 11, 1902, either waived it in its entirety, or, if it was not so waived, then the right to enforce it was postponed for a period of five years from such date, and therefore the present steps are premature and without authority ; (4) that if the right to purchase subsists as defendants claim, the time for its enforcement was in December, 1905, and any steps for the appointment of appraisers taken before this date are ineffectual and invalid; and (5) that the city, in any event, is powerless to effect such a purchase under the circumstances alleged, since the exercise of such a right calls for the creation of a debt in excess of the constitutional limitation. - An examination of these contentions will test the sufficiency of the complaint.
The power of a city to establish, maintain, and operate a system of waterworks was clearly recognized in Ellinwood v. Reedsburg, 91 Wis. 131, 64 N. W. 885, as within the exercise of the powers granted it to accomplish the usual functions pertaining to police regulations, the preservation of the public health, and the general welfare. We cannot discover that acquiring an existing waterworks system, constructed by private parties under authority from the city, is an impediment to the exercise of this power. In its nature this is an exercise of such power for proper municipal purposes and differs from the usual method only in the manner of accomplishing it. Such method of acquiring control of waterworks plants has been upheld as proper in other jurisdictions. Fayetteville v. Fayetteville W., L. & P. Co. 135 Fed. 400; Bristol v. Bristol & W. W. W. 19 R. I. 413, 34 Atl. 359; 2 Abbott, Mun. Corp. §§ 456, 457.
It is said that if the contract for the purchase, contained in the ordinance authorizing the construction of plaintiff’s waterworks system, was legal in its inception, then the city *419has exhausted such right under it by its proceeding to effect such purchase in the year 1900. It is undisputed that "the city took steps to have, and that it secured, an appraisal of plaintiff’s property at that time for the purpose of enforcing a purchase under the ordinance, and that after such appraisal it determined not to purchase the property at the valuation fixed by the arbitrators. The ordinance reserves to the city the right to acquire such waterworks system by purchase and to secure a conveyance “at the expiration of five years from the completion of said works and at intervals of five years thereafter.” The meaning of this clause is free from obscurity and uncertainty, and is plainly to the effect that the city should have a right to secure the waterworks by purchase at the expiration of five years after its original completion, and that if it did not then purchase it might do so at the expiration of any interval of five years thereafter. There is nothing in the agreement from which it can be inferred that the city should be deemed to have exhausted its fight to purchase whenever it had secured one appraisal of the works for that purpose. Since the city did not purchase in 1900 it still has this right, unless it waived it by the agreement of February 11, 1902, or otherwise lost it.
The allegations of the complaint show that the agreement of February 11, 1902, embraced an adjustment of differences between the city and the waterworks company respecting complaints of insufficiency of the service furnished the city and its inhabitants, but nothing appears, either expressly or by implication, indicating that the agreement in the ordinance respecting the city’s right to purchase the property was modified. Everything undertaken pursuant to that agreement was for the purpose of bringing the waterworks system up to the required state of efficiency evidently contemplated in the original undertaking for its construction, and the extension and additions of such improvements of the plant were treated as carrying out the original plan for providing a water *420service' to the city. We find no basis for the claim that the city by this agreement waived and- altered the provision of the ordinance respecting the city’s right to purchase at any interval of five years from the time of its completion in 1885. This part of the contract remains as it was when first made, and embraces whatever extensions, additions, and improvements plaintiff or its predecessor in ownership of the plant may have made under the agreement of February 11, 1902.
Another claim is that defendant cannot enforce any right to purchase under the notice served by its mayor on August 4, 1905, because no steps can be taken to effect this purpose until the city decides to make the purchase, and that such determination must be made on December 15th, the date of the expiration of the five-year intervals. This is asserted upon the condition in the contract that:
“Whenever the city shall determine or desire to purchase said works, the mayor thereof shall give written notice to said grantees, their heirs and assigns, to appoint and select two persons to act as arbitrators in fixing and appraising the value of such waterworks.”
The city is also to select two persons as arbitrators, and the four persons so selected are to choose a fifth. If these terms of the agreement were to be considered independently of all the other facts, it might furnish a basis for such a construction; but they must be read and interpreted with the other parts of this agreement, wherein it is specified that after the appraisal of the plant has been made and reduced to writing by the persons so chosen by the parties, and after they have delivered a duplicate thereof to the plaintiff and filed another with the city clerk within ten days after the appraisal so made, the city “shall thereupon have the right then and there to exercise' the option to take the said waterworks, and all property, rights, and appurtenances connected therewith, or. in any manner appertaining thereto, at the price so fixed.” The terms of this provision express clearly that the city is *421not required to decide whether or not .it will exercise the right to purchase until the appraisal has been made and filed. In the light of these provisions and the conditions specifying how the arbitrators were to be selected and appointed and how the appraisal was to be made, it is obvious that the steps for an appraisal of the property were to be taken before the city was called upon to decide whether or not to purchase, and in order that the city might act understandingly in the matter of' exercising its option within reasonable proximity to the expiration of the period when the purchase was to be made under the agreement. The nature of the transaction involved suggests that this was the natural and obvious intention of the parties in making this stipulation. Of course, each party must act within a time reasonably near the expiration of the period fixed by the agreement. The city was therefore called upon to have all the steps preliminary to the exercise of its option taken at a time reasonably near December 15th. In view of the steps required to secure an appraisal and the time needed by the arbitrators to file their appraisal, we are of the opinion that the city did not act prematurely in giving notice on August 4, 1905, for the selection of arbitrators to appraise the property. The time necessarily required to complete the appraisal brings the time of notice reasonably near the time when the city had the right “to exercise the option to take the said waterworks ... at the price so fixed.” Valparaiso City W. Co. v. Valparaiso, 33 Ind. App. 193, 69 N. E. 1018.
It is also contended that the city is powerless to effect such a purchase, under the facts and circumstances alleged, upon the ground that its consummation calls for the creation of. a city debt in excess of the constitutional limitation. In view of the assessed valuation of the taxable property of the city, and in view of the fact that the city now has an indebtedness nearly reaching the constitutional limitation, and that an addition to the present city indebtedness of the amount of *422money necessarily required to purchase this waterworks plant would of necessity create an indebtedness which in the aggregate would exceed five per centum of the value of the taxable property in the city as ascertained by assessments made for state and county taxes, it is asserted that the city cannot effect such a purchase. It is urged that the city now has no funds to apply to such use, and is unable to provide any by the means within its power, and that the obligation which it must incur in making the contemplated purchase will of necessity increase the city’s indebtedness above the constitutional limitation. We are unable to perceive any merit in these contentions. The fundamental facts involved in these claims are the purchase price of the property, the nature of the obligations the city will be required to assume to raise the necessary means to make the purchase, and the financial condition of its treasury at the time of the purchase. All of these are as yet not ascertained. Under these circumstances the question of the city’s ability to consummate the contemplated purchase is one that cannot now be ascertained nor determined, and its merits cannot arise under the facts alleged in the complaint.
Upon these considerations it must be held that the complaint states no facts showing that the right of the city to purchase, under the provisions of the ordinance, has been abrogated or lost; that the city is properly within its rights in seeking to have arbitrators appointed to appraise the plaintiff’s.waterworks plant for the purpose of enforcing the right reserved to it of securing it by purchase and conveyance; and that the trial court properly held that the complaint stated no grounds entitling plaintiff to relief restraining defendants from proceeding in this matter.
By ih& Oourt. — Order affirmed.