Totman v. Malloy

431 Mass. 143 · Massachusetts Supreme Judicial Court · 2000

Facts

In 1952, Caroline G. Totman conveyed one parcel of land to her son and daughter-in-law, William and Mary Totman (plaintiffs), while retaining an abutting parcel (lot A). Caroline lived on lot A until 1989, when she conveyed it to her grandson, Patrick M. Totman. In 1992, Patrick and his wife conveyed lot A to John and Patricia Malloy (defendants). Between 1952 and 1989, William Totman performed extensive maintenance on a disputed stream and beach area located between the parcels, including building a dam, a footbridge, cleaning the beach, refreshing sand, and maintaining a dock. In 1993, the defendants hired a surveyor to stake boundaries, but the plaintiffs prevented the installation of concrete bounds in the disputed area.

Procedural history

The plaintiffs brought an action in Land Court to claim title to disputed land by adverse possession. A Land Court judge, applying a presumption of permissive use among family members, held that the plaintiffs had failed to establish the necessary elements. The plaintiffs appealed, and this court transferred the case on its own motion.

Issue

Did the Land Court err by applying a presumption of permissive use among family members when determining whether the plaintiffs had established the necessary elements of adverse possession?

Holding

Yes, the Land Court erred by applying a presumption of permissive use among family members. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

Rule

A party claiming title by adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of twenty years. The court declines to create a presumption or inference of permissive use among family members, as such a presumption would require additional proof from related claimants, encourage evidence of family strife, and improperly require evaluation of a claimant's state of mind. Instead, courts should examine factors such as the character of the land, who benefited from its use, how it was held and maintained, and the nature of the individual relationship between the parties, without a familial presumption. Where the use of land is actual, open, and exclusive for twenty years, the nonpermissiveness of the use may be inferred.

Read the full opinion on CourtListener

Case brief last reviewed 2026-09-17. Prepared by CaseReader from the published opinion.