## Facts

- Two adjoining parcels were originally owned by Caroline G. Totman in Stoughton, Massachusetts.
- In 1952, Caroline conveyed one parcel to William H. Totman and Mary Totman (plaintiffs).
- Caroline retained the abutting parcel until 1989, when she conveyed most of it to the plaintiffs’ son, Patrick M. Totman.
- In 1992, Patrick and his wife conveyed that parcel to John G. Malloy and Patricia Malloy (defendants).
- The disputed area consisted of (1) a beach area by a pond west of the plaintiffs’ parcel and (2) a strip with a stream along the plaintiffs’ southern boundary; a later survey placed both areas within the defendants’ record title.
- From 1952 to 1989, William Totman used and maintained the disputed areas by performing stream maintenance, mowing, building a dam and footbridge, improving a dock, refreshing sand, placing a trailer near the beach, and hosting family gatherings.
- When Caroline conveyed to Patrick in 1989, ownership of the stream and beach area was not discussed.
- After purchasing in 1992, the defendants staked the boundary and attempted to place corner bounds; the plaintiffs obstructed placement within the disputed area.
- In 1995, the plaintiffs sued claiming title by adverse possession and, alternatively, a prescriptive easement to use the pond and beach.

## Issues

1. Whether Massachusetts law recognizes a general presumption that land use is permissive (not adverse) merely because the claimant and record owner are family members.
2. Whether the trial court applied the correct legal standard in rejecting adverse possession and a prescriptive easement by treating the family relationship as creating a dispositive presumption of permission.

## Decision

- The Supreme Judicial Court vacated the judgment for the defendants and remanded.
- The court held the trial court erred by applying an automatic presumption that intra-family use is permissive.
- The court directed the trial court to reconsider adverse possession and prescriptive easement under the ordinary, objective test for adversity/nonpermissive use, treating family relationship only as a factual circumstance.

## Legal Principles

- Adverse possession requires proof, for twenty years, of possession that is actual, open, notorious, exclusive, and adverse (nonpermissive).
- A prescriptive easement requires open, notorious, adverse, and continuous use for twenty years; exclusivity is not required.
- Whether use is adverse/nonpermissive ordinarily turns on the objective character of the claimant’s acts and whether they would place the record owner on notice of a claim of right.
- Massachusetts law does not impose a categorical presumption of permissive use solely because the parties (or their predecessors) are related; kinship may be considered as evidence but does not control as a matter of law.
- Appellate review defers to factual findings unless clearly erroneous, but whether the correct legal standard was applied is reviewed as a question of law.

## Conclusion

The court set aside the trial judgment because it treated family relationship as creating a legal presumption of permission, and it required reconsideration of the adverse possession and prescriptive easement claims based on the objective nature of the plaintiffs’ long-term use of the disputed areas.


Totman v. Malloy, 725 N.E.2d 1045 (Mass. 2000)