delivered the opinion of the Court. The only question in this case is, whether the town of Newton have a right to tax the plaintiffs, for the property, and under the circumstances, mentioned in the agreed statement of facts.
In the first place, the Court are of opinion, that water power for mill purposes not used, is not a distinct subject of taxation. It is a capacity of land for a certain mode of improvement, which cannot be taxed independently of the land.
But the objection to this mode of taxation, is not the only or principal objection to the tax in question. The Court are of opinion, that the water power had been annexed to the mills, that it went to enhance the value of the mills, and could only be taxed together with the mills, as contributing to increase their value. As the mills were wholly situated in Waltham, and were taxable there, they were not liable to be taxed in Newton.
Defendants defaulted and judgment to be entered for the amount agreed.