NO. 4-01-0989

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In March 1998, plaintiff, Joseph S. Dotson (Joseph orplaintiff), a minor by his next friend and father, L. StantonDotson (Dotson), an attorney, filed suit to quiet title in aparcel of real estate situated in Coles County that once belongedto Abraham Lincoln and that was later owned by defendant corporation, Abraham Lincoln Land and Cattle Company, Inc., and unknownowners (collectively, defendants). As the grantee of a nominalshare of the parcel, whose prior owner, Dotson, had paid the realestate taxes for seven years, plaintiff claimed title should bequieted in his favor pursuant to section 13-110 of the Code ofCivil Procedure, also referred to as the Limitations Act (735ILCS 5/13-110 (West 1996)). In March 2001, the trial court foundthat plaintiff had established all elements of section 13-110 andquieted title to the parcel in plaintiff. Defendants appeal. Wereverse.

I. BACKGROUND

In 1841, the 40-acre farm parcel was purchased byAbraham Lincoln from his father, Thomas Lincoln, who reserved alife estate in the property for himself and his wife, Sarah BushLincoln. Abraham Lincoln was a frequent visitor to the parcel,and it was the only farm property he ever owned.

Sarah Bush Lincoln resided on the farm until her deathin 1869, some four years after the assassination of AbrahamLincoln. Prior to 1900, the parcel was obtained by the ancestorsof Raymond Phipps, who received 36 acres of the parcel from hisgrandparents' estate in 1973.

In 1975, Phipps developed a business plan to sellinterests in a portion of the parcel, based upon its connectionto Abraham Lincoln. Pursuant to this plan, Phipps platted andrecorded a four-acre portion of the entire 40-acre parcel as theAbraham Lincoln Memorial Farm Plat (Farm Plat). The Farm Platconsisted of four separate lots of approximately one acre,numbered 1 through 4 (Lots 1 through 4). These lots were rectangular in shape, approximately 132 feet by 330 feet, running alonga north-south axis, with the short ends of the rectangles formingthe boundaries between the lots. The entire four-acre tractformed a large, 132-foot-wide, 1,320-foot-long rectangle. Eventually, Phipps transferred his entire interest in the FarmPlat to a for-profit Illinois corporation he had recently formed,Abraham Lincoln Land & Cattle Company, Inc. (Lincoln Land I).

As described by Phipps, the corporate aim of LincolnLand I was to sell nominal deeds, primarily for souvenir purposes, to Lot 1 of the Farm Plat to persons interested in thehistory of Abraham Lincoln and Coles County. Under this plan,each deed would transfer a 1/1,672,640 undivided interest--approximately one square inch--in Lot 1 of the Farm Plat. According to Phipps, the proximity of the Farm Plat near theAbraham Lincoln State Park and other sites of local and historicinterest would be a salient feature in the sale of the souvenirdeeds. Phipps eventually developed a strategy to market thedeeds, planning to use the proceeds to maintain the land and tomake a small profit. Phipps was even successful in persuadingthe Neiman-Marcus department store to offer the deeds in itsfamous Christmas catalog in 1977.

On June 3, 1976, plaintiff's father and next friend,Dotson, purchased one of the souvenir deeds. At that time,Dotson considered the deed a "memento" of Abraham Lincoln, and hedid not consider it as an investment or substantive interest inLot 1. Later, on August 30, 1976, Dotson recorded the deed within the Coles County recorder's office.

Eventually, in the mid-1980s, Lincoln Land I becameinsolvent. Phipps failed to pay franchise taxes, failed to filean annual report, and began paying Lincoln Land I's bills withhis own funds. On March 1, 1985, the Secretary of State dissolved Lincoln Land I without objection from Phipps.

In 1989, Dotson learned Lincoln Land I had been dissolved. After contacting the Secretary of State and learning thecorporate name Abraham Lincoln Land & Cattle Company, Inc., wasavailable, Dotson formed a not-for-profit corporation with thesame name (Lincoln Land II).

On July 24, 1989, Dotson prepared and executed a deedof his interest in Lot 1 in favor of his then-wife, Judith AnnaDotson (Judith). However, the legal description omitted thefractional interest, so the deed purported to transfer an entireinterest in Lot 1 to Judith. Further, the deed indicated allfuture real estate tax bills should be mailed to Judith. Dotsonpaid the $1 transfer tax.

As part of dissolution proceedings, on March 28, 1991,Judith transferred several parcels of real estate, via warrantydeed, back to Dotson. Among these was the interest in Lot 1created by the July 24, 1989, deed from Dotson to Judith. Thisdeed specified all future tax bills should be sent to Dotson.

Two months later, on June 10, 1991, Dotson quitclaimedthe interest in Lot 1 to his second wife, Laurie Ann Roley Dotson(Laurie), and he specified all future tax bills should be sent toher. Then, on June 2, 1992, Dotson and Laurie, listed ascograntors, purportedly transferred the interest in Lot 1 toplaintiff via warranty deed. This deed specified all future taxbills should be sent to plaintiff.

On December 2, 1997, Laurie quitclaimed an interest inLot 1, "except the [n]orth [e]ight (8) [f]eet thereof," toplaintiff and stated all future tax bills should be sent toplaintiff. Dotson was not listed as a cograntor on this deed. According to defendants, at some point after this deed, Dotsonpurportedly quitclaimed the north eight feet of Lot 1 to anindividual who was running for Congress.

Then, on January 29, 1998, Laurie executed a "corporation warranty deed" as president of, and on behalf of, LincolnLand II. This deed purported to transfer Lot 1, except "[t]he[n]orth 8 feet of Lot One (1), except the [n]orth 1 foot thereofand except the east 12 feet thereof," to plaintiff. Dotsonattested this deed as the secretary of Lincoln Land II.

By this point, Dotson had received and paid the realestate taxes due on Lot 1 for the tax years 1990 through 1996,each payable in the following year. In those years, the tax dueon Lot 1 never exceeded $40. Through those same tax years,Phipps received and paid the tax bills for Lots 2, 3, and 4. According to Phipps, he did not notice when the Coles Countyassessor stopped sending the tax bills for Lot 1 because hereceived a single bill which did not itemize what amounts weredue on which lots or which lots it covered. Instead, the billsimply specified an amount due, which varied from year to year. For example, Phipps's tax bill--with no specification as to thelots covered--amounted to $267.26 in 1992, $308.20 in 1993,$355.84 in 1994, and $305.86 in 1995.

On February 19, 1998, Dotson strung a single, loosestrand of barbed wire across the south boundary of Lot 1, whichis adjacent to a road. Additionally, Dotson posted a no-trespassing sign on the fence. The eastern, western, and northernboundaries were not then otherwise fenced.

On March 4, 1998, plaintiff and Dotson filed a petitionto quiet title, naming the former shareholders of Lincoln Land Iand unknown owners as defendants. Service was made by publication, and in the affidavit required for such service, Dotsonattested to his inability to locate the unknown owners after adiligent inquiry. According to defendants, however, the originaldeed of the nominal interest included Phipps's name and address,which was still his address on March 4, 1998.

After a three-day trial in January 2001, the trialcourt issued a four-page memorandum opinion (memorandum opinion)on March 13, 2001, granting quiet title to plaintiff. While thememorandum opinion stated "judgment is entered for the[p]laintiff and quiet title is granted [plaintiff]," no mentionwas made of whether the trial court would require the parties tosubmit a written draft order.

The following day, March 14, 2001, plaintiff and Dotsonfiled a motion for sanctions pursuant to Supreme Court Rule 137(155 Ill. 2d R. 137). On March 22, 2001, defendants filed anotice of appeal to this court, seeking reversal of the trialcourt's judgment as expressed in the memorandum opinion, docketedNo. 4-01-0250. After a hearing on the motion for sanctions onApril 19, 2001, the trial court denied the motion the same day ina docket entry, which stated, "[b]y [a]greement of [c]ounsel, thedocket entry will stand as dispositive."

On July 3, 2001, defendants filed a motion in thiscourt seeking voluntary dismissal of their own appeal, arguingthe notice of appeal was premature under Supreme Court Rule 272(137 Ill. 2d R. 272) and a local rule of the Fifth JudicialCircuit (5th Judicial Cir. Ct. R. XI(A) (eff. November 3, 1997)(III Ill. Court Rs. & Proc. 193 (West 2002))). We granted themotion on July 5, 2001. Dotson v. Former Shareholders of AbrahamLincoln Land & Cattle Co., No. 4-01-0250 (July 5, 2001) (dismissal order).

After the dismissal of defendants' appeal, defendants'counsel wrote to plaintiff's counsel July 13, 2001, requestingplaintiff submit a written judgment order for the trial court'ssignature. When plaintiff failed to respond, defendants filed amotion for entry of judgment in the trial court on September 5,2001. The trial court denied this motion on October 11, 2001,stating in a docket entry: "Motion denied. Docket entry to standas and for the [c]ourt's order." On November 9, 2001, defendantsfiled this second notice of appeal with this court, docketed No.4-01-0989.

II. ANALYSIS

On appeal, defendants argue the trial court erred by(1) finding plaintiff had established "good faith" under section13-110 of the Limitations Act and (2) finding plaintiff hadestablished possession of Lot 1. Plaintiff has objected to thiscourt's jurisdiction to entertain defendants' appeal, claimingdefendants' notice of appeal was untimely.

A. Finality of the Memorandum Order For Purposes of Appeal

Plaintiff contends this court is without jurisdictionbased on the trial court's March 13, 2001, memorandum opinion. Plaintiff asserts the memorandum opinion constituted the trialcourt's final judgment for purposes of appeal. Defendantscontend the March 2001 memorandum opinion was not a final orderpursuant to Supreme Court Rule 272 (137 Ill. 2d R. 272) and LocalRule XI(A) of the Fifth Judicial Circuit (Fifth Judicial Cir. Ct.R. XI(A) (eff. November 3, 1997) (III Ill. Court Rs. & Proc. 193(West 2002))). We agree with defendants.

Supreme Court Rule 303(a) requires a party seeking anappeal to file a notice of appeal "within 30 days after the entryof the final judgment appealed" or "within 30 days after theentry of the order disposing of the last pending post[]judgmentmotion." 155 Ill. 2d R. 303(a). Plaintiff contends this periodbegan running when the trial court filed its memorandum opinionon March 13, 2001, and defendants' appeal should have been filedwithin 30 days thereafter.

We are unpersuaded by this characterization. First,when a memorandum opinion contemplates the entry of a formalwritten order, it is not a final order for purposes of appeal. Stoermer v. Edgar, 119 Ill. App. 3d 514, 515, 456 N.E.2d 701, 702(1983). A "memorandum signed by the court cannot be deemed to bethe judgment of record; it is but a direction to enter judgmentor an indication of what the [court's] judgment will be." Stoermer, 119 Ill. App. 3d at 515, 456 N.E.2d at 702.

Here, the trial court's memorandum opinion, whilestating "judgment is entered for the [p]laintiff," failed tostate whether a formal order would follow or whether it wasnecessary. This ambiguity leads us to the reason we are notpersuaded to accord the memorandum opinion the finality plaintiffurges. Supreme Court Rule 272 states as follows:

"If at the time of announcing finaljudgment the judge requires the submission ofa form of written judgment to be signed bythe judge or if a circuit court rule requiresthe prevailing party to submit a draft order,the clerk shall make a notation to that effect and the judgment becomes final only whenthe signed judgment is filed." (Emphasisadded.) 137 Ill. 2d R. 272.

Plaintiff contends the memorandum opinion constituted the trialcourt's final judgment, because the memorandum opinion did notrequire either party to submit a written order.

However, the sort of local rule contemplated by SupremeCourt Rule 272, requiring the submission of a written order toensure finality of judgment, was in effect in the proceedingsbefore the trial court. Local Rule XI(A) of the Fifth JudicialCircuit, titled "Written Draft Orders," provides as follows:"When the court *** enters a final judgment, the attorney for theprevailing party shall submit [a written draft order] to thecourt within 30 days [sic], unless otherwise directed by thecourt." (Emphasis added.) 5th Judicial Cir. Ct. R. XI(A) (eff.November 3, 1997). Under the local rule, a party seeking a finaljudgment must supply the court with a written draft order unlessthe court indicates otherwise.

Here, the trial court's memorandum opinion was silenton whether a written draft order was required. The mandatorylanguage of the local rule thus required plaintiff to submit awritten order for the trial court's signature. However, ourreview of the record indicates no written draft order followedthe court's memorandum opinion. Thus, our reluctance to characterize the memorandum opinion as a final judgment is based onplaintiff's failure to comply with the relevant supreme courtrule and local rule. Had plaintiff believed the memorandumopinion constituted the trial court's final judgment, the burdenof formalizing it fell to him. He failed to carry this burden.

Finally, even if the memorandum opinion constituted afinal judgment, plaintiff negated its finality the following dayby filing a motion for sanctions pursuant to Supreme Court Rule137 (155 Ill. 2d R. 137). As our supreme court has consistentlyheld, no appeal may be taken from an otherwise final judgmententered on a claim when a sanctions claim remains to be resolved,absent a finding pursuant to Rule 304(a) (155 Ill. 2d R. 304(a))of no just reason to delay enforcement or appeal. John G.Phillips & Associates v. Brown, 197 Ill. 2d 337, 340, 757 N.E.2d875, 877 (2001), quoting Marsh v. Evangelical Covenant Church,138 Ill. 2d 458, 468, 563 N.E.2d 459, 464-65 (1990). This stemsfrom our supreme court's interpretation of its own rules regarding motions for sanctions. According to our supreme court,motions for sanctions under Rule 137 are "claims" in the cause ofaction with which they are connected. Brown, 197 Ill. 2d at 339,757 N.E.2d at 877. "In this regard, filing a Rule 137 motion isthe functional equivalent of adding an additional count to acomplaint, or counter[]claim, depending on which party files themotion." Brown, 197 Ill. 2d at 340, 757 N.E.2d at 877.

Any notice of appeal filed prior to the trial court'sresolution of plaintiff's sanctions motion would have beenpremature without a Rule 304(a) finding. On April 19, 2001, thetrial court ruled on plaintiff's motion for sanctions in a docketentry and denied plaintiff's requests for sanctions and stated,"[b]y [a]greement of [c]ounsel, the docket entry will stand asdispositive." No mention, or incorporation, of the March 2001memorandum opinion was made.

We cannot say this order constituted a final judgmentresolving all claims. As our supreme court has held, "[i]f anorder does not resolve every right, liability[,] or matterraised, it must contain an express finding that there is no justreason for delaying an appeal. Otherwise, the order is notappealable." Marsh, 138 Ill. 2d at 465, 563 N.E.2d at 463; seealso 155 Ill. 2d R. 304(a) ("an appeal may be taken from a finaljudgment as to one or more but fewer than all of the parties orclaims only if the trial court has made an express writtenfinding that there is no just reason for delaying either enforcement or appeal or both").

Defendants' September 5, 2001, motion for entry ofjudgment, while not a proper motion for a Rule 304(a) finding,was simply defendants' attempt to require plaintiff, or the trialcourt, to comply with the local rule and Supreme Court Rule 272. Only when the trial court denied that motion was it clear to allparties the court had conclusively entered final judgment on allissues. We find defendants timely filed their notice of appealherein, and our jurisdiction is proper.

B. The Trial Court Erred in Entering Judgment for Plaintiff

Defendants advance two arguments on appeal: (1) thetrial court erred in concluding plaintiff established the goodfaith required by section 13-110 of the Limitations Act, and (2)the trial court erred in concluding plaintiff established sufficient possession of the Lot 1. As to both issues, we agree withdefendants and reverse.

1. Elements for Acquiring Title to Vacant Land

Section 13-110 of the Limitations Act provides, inpertinent part as follows:

"Whenever a person having color of title, made in good faith, to vacant and unoccupied land, pays all taxes legally assessedthereon for 7 successive years, he or sheshall be deemed and adjudged to be the legalowner of such vacant and unoccupied land, tothe extent and according to the purport ofhis or her paper title." 735 ILCS 5/13-110(West 1996).

To establish title under this section, a claimant must establish(1) color of title to the parcel, (2) his or her good faith inacquiring title, (3) the vacancy of the land, and (4) payment ofthe real estate taxes on the parcel for seven consecutive years. We note, however, a long-standing judicial construction, requiring a person seeking to perfect title under section 13-110 alsotake possession of the property. See Jones v. Unknown Heirs orLegatees of Fox, 313 Ill. App. 3d 249, 255-56, 728 N.E.2d 1157,1163 (2000); Slatin's Properties, Inc. v. Hassler, 53 Ill. 2d325, 328, 291 N.E.2d 641, 642-43 (1972).

2. Standard of Review of Section 13-110 Claims

The parties disagree regarding the standard of review. Plaintiff maintains, with little support, the abuse of discretionstandard should apply. Defendants argue in favor of a mixedstandard of review. According to defendants, while the issues ofa section 13-110 claimant's good faith (see Hardin v. Gouveneur,69 Ill. 140, 143 (1873)) and possession (Klingel v. Kehrer, 81Ill. App. 3d 431, 438, 401 N.E.2d 560, 566 (1980)) are issues offact, the ultimate question before the trial court was a mixedquestion of law and fact. Such questions involve "an examinationof the legal effect of a given set of facts" and are reviewedunder the clearly erroneous standard. AFM Messenger Service,Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391,763 N.E.2d 272, 279 (2001).

We failed to locate any case affirmatively stating thestandard of review in cases brought pursuant to section 13-110 ofthe Limitations Act. In addition to the cases cited by plaintiff, we find persuasive the similarity between adverse possession cases (see735 ILCS 5/13-101 (West 1996)) and those broughtunder section 13-110. In adverse possession cases, all presumptions are made in favor of the record titleholder, and overcomingthe presumption requires strict proof of the element, which maynot be made out by inference or implication. Mann v. La SalleNational Bank, 205 Ill. App. 3d 304, 309, 562 N.E.2d 1033, 1037(1990). The burden of proof upon an adverse possessor requireseach element be proved by clear and unequivocal evidence. Joinerv. Janssen, 85 Ill. 2d 74, 81, 421 N.E.2d 170, 174 (1981). Sinceour supreme court has not explained "clear and unequivocalproof," courts have applied the clear and convincing burden ofproof in adverse possession cases. Estate of Welliver v.Alberts, 278 Ill. App. 3d 1028, 1036, 663 N.E.2d 1094, 1098(1996).

We conclude this is the appropriate standard in claimsbrought under section 13-110 of the Limitations Act as well. Many early cases addressing predecessor sections to section 13-110 indicate all presumptions should be made in favor of theholder of legal title, and, as against him, no presumptionsshould be made in favor of the holder of mere color of title. See Towle v. Quante, 246 Ill. 568, 574, 92 N.E. 967, 969 (1910);see also Slatin's Properties, Inc. v. Hassler, 132 Ill. App. 2d882, 886-87, 271 N.E.2d 665, 668 (1971), rev'd on other grounds,53 Ill. 2d 325, 291 N.E.2d 641 (1972).

Insofar as a claimant under section 13-110 is entitledto no presumptions as the holder of color of title only, itfollows that every element of possession under section 13-110must be clearly proved. Thus, our review is simplified as thefollowing question: was the trial court's conclusion plaintiffclearly proved every element of section 13-110 clearly erroneous?

2. The Trial Court Erred in Finding Plaintiff's Good Faith

Defendants first argue the trial court erred in findingplaintiff had established good faith under section 13-110. Thewords "good faith" must receive a practical, commonsense construction; thus, a purchaser who buys and pays his money for landunder the belief he is acquiring title, acquires title in goodfaith. Winters v. Haines, 84 Ill. 585, 588 (1877); see alsoBergesen v. Clauss, 15 Ill. 2d 337, 343, 155 N.E.2d 20, 23 (1958)(good faith "depends upon the purpose with which the deed isobtained, and the reliance placed upon the claim and the color. A party receiving color of title, knowing it to be worthless, orin fraud of the owner's rights, although he holds the color andasserts the claim, can not render it availing, because of thewant of good faith"). Simply put, the good faith required bysection 13-110 can be defined negatively as the absence of anintent to defraud the holder of better title or as the absence ofbad faith. McCree v. Jones, 103 Ill. App. 3d 66, 70, 430 N.E.2d676, 678 (1981), citing Gochenour v. Logsdon, 375 Ill. 139, 142,30 N.E.2d 666, 668 (1940). This requirement distinguishes aclaimant under section 13-110 from an adverse possession claimantunder section 13-101. See Joiner, 85 Ill. 2d at 81-84, 421N.E.2d at 174-75 (comparing previous versions of sections 13-110and 13-101).

In its memorandum opinion, the trial court addressedthe good faith of plaintiff by stating the original June 3, 1976,deed conveying the nominal interest in Lot 1 "was made in goodfaith and is the foundation for all subsequent deeds of recordwhich the [c]ourt finds not to have been made in bad faith." However, in the very same factual finding, the trial courtacknowledged the following: "while the subsequent deeds could notenlarge the ownership interest [in Lot 1,] they did convey theundivided interest in the whole of the subject property."

A deed that purports by its description to convey moreland than actually belongs to the grantor is sufficient toestablish color of title to all of the land included in thedescription (Clayton v. Feig, 179 Ill. 534, 539, 54 N.E. 149, 151(1899)), but we cannot agree the later deeds were similarly madein good faith. It is critical to note the real parties ininterest. While the named plaintiff is Dotson's son, a minor,the party responsible for (1) the payment of the real estatetaxes and (2) any acts of possession was Dotson, who was awarethe initial interest conveyed was not the same purportedlyconveyed by the later deeds. In fact, Dotson himself had draftedthose deeds. Most notably, Dotson testified he told Judith "Iwill sell it to you, the whole acre, because they probably won'tpay taxes on it, and, if they don't and you pay taxes and you gothrough the proper procedures, you will own it in seven or eightyears."

If the good faith required by the statute is to begiven a commonsense construction, the trial court's findingregarding the plaintiff's good faith cannot stand. We concludesection 13-110's good-faith requirement is meant to protectinnocent transferees from loss of their investment by the misrepresentations of the transferor (see Bergesen, 15 Ill. 2d at 343,155 N.E.2d at 23), rather than to provide a shortcut around the20-year possession period required of an adverse possessor. Noneof the transfers of interest in Lot 1 was an arm's-length transaction. As he admitted at oral argument, Dotson shifted theownership to members of his own family, aware his individual"reliance on the claim and color" would not be sufficient toestablish his good faith under section 13-110. See Bergesen, 15Ill. 2d at 343, 155 N.E.2d at 23. We conclude plaintiff failedas a matter of law to prove good faith by clear and convincingevidence.

3. The Trial Court Erred in Finding Plaintiff

Established Possession

Defendants next contend the trial court erred inconcluding plaintiff had established sufficient possession of Lot1. As noted, a long-standing judicial construction requires aclaimant under section 13-110 to take possession of the propertyat the conclusion of the seven-year period. See Jones, 313 Ill.App. 3d at 256, 728 N.E.2d at 1163. Under this construction, thepossession must (1) be of such a nature as to place othersclaiming title upon inquiry, and (2) apprise the community orneighborhood the parcel is in the exclusive use and enjoyment ofthe person or persons so appropriating it. Jones, 313 Ill. App.3d at 256, 728 N.E.2d at 1163. Further, a section 13-110 claimant's possession "cannot be inferred but must be clearly proven." Slatin's Properties, 132 Ill. App. 2d at 886-87, 271 N.E.2d at668.

In its memorandum opinion, the trial court found "[i]nFebruary 1998, Dotson took possession of the property by erectinga fence thereon and putting a no-trespassing notice at theentrance." Further, the trial court found plaintiff "has takenoccupancy of the subject property by means of fencing, posting,and maintaining his right and interest therein as evidenced bythese proceedings." We are not persuaded plaintiff clearlyproved his possession.

First, plaintiff failed to establish the community'sperception of the ownership of Lot 1 in him by clear and convincing evidence. Defendants presented the testimony of two witnesses, and the affidavit of another witness, who stated theywere not aware of plaintiff's or Dotson's claim to Lot 1. Allthree individuals believed Lot 1 to be in Phipps's possession. Plaintiff contends some witnesses were aware of the fencing, buthe points to no part of the record to indicate a witness's beliefplaintiff or Dotson was in possession of the property.

Second, plaintiff failed to establish his possession ofLot 1 apprised the community or neighborhood the parcel was inplaintiff's exclusive use and enjoyment. Plaintiff maintains thesingle-strand fence strung across the south side of Lot 1 inFebruary 1998, along with the placement of the no-trespassingsign, sufficed to establish possession in plaintiff. We are notpersuaded. To further borrow from the adverse possession context, when a party seeks to establish possession of a discreteparcel of real estate, the boundaries of the property to whichthe party claims title must be susceptible of specific anddefinite location. Tapley v. Peterson, 141 Ill. App. 3d 401,404-05, 489 N.E.2d 1170, 1172 (1986). The critical aspect ofpossession is to provide notice to the community. See Jones, 313Ill. App. 3d at 256, 728 N.E.2d at 1163.

Here, plaintiff initially fenced only the southernboundary of Lot 1. This single act was insufficient to put theentire community on notice of plaintiff's possession of theentirety of Lot 1. We are persuaded most in this regard by thegeographic orientation. Immediately to the north of Lot 1 sitsLot 2, a parcel in which plaintiff never claimed any interest andupon which sits a log cabin structure. In fact, the community'sbelief of Phipps's possession of the entire Farm Plat was basedupon his frequenting the cabin. For example, defendant presentedthe testimony of Randy Jackson, the assistant manager of theimmediately adjacent Abraham Lincoln State Park. Jackson testified he often visited Phipps at the log cabin, both before andafter February 1998, and his belief as to Phipps's possession ofthe entire tract was based on these experiences. Moreover,Jackson testified he never saw Dotson at Lot 1. Other witnessesfor defendant testified in a similar manner.

Absent any action clearly separating plaintiff'spossession of Lot 1 from any possession of Lot 2, plaintiff'sfencing of the southern border of Lot 1 did not constitutesufficient notice of possession. A casual passerby would nothave been put on notice that an entire one-acre lot stood betweenthe log cabin and the southern boundary of the Farm Plat. Similarly, the no-trespassing sign was as attributable to Phippsas to plaintiff, insofar as no boundary was established betweenthe two parcels.

Plaintiff presented no evidence of possession otherthan the fencing. No witnesses testified on behalf of plaintiffregarding plaintiff's presence on Lot 1, and defendants presentedthe testimony of at least three witnesses who stated they hadnever seen plaintiff or Dotson on Lot 1. This does not strike usas the sort of visible possession required of a section 13-110claimant. See Jones, 313 Ill. App. 3d at 256, 728 N.E.2d at 1164(holding an "apparent lack of activity and [an] infrequency ofvisitors are not consistent with possessing the property in amanner which places others on inquiry and apprises the neighborhood of plaintiffs' exclusive use").

III. CONCLUSION

For the reasons stated, we reverse the trial court'sjudgment and remand with directions to enter judgment for defendants.

Reversed and remanded with directions.

MYERSCOUGH, J., concurs.

McCULLOUGH, P.J., dissents.

PRESIDING JUSTICE McCULLOUGH, dissenting:

I agree with the majority that the trial court erred infinding plaintiff's good faith and erred in finding plaintiffestablished possession.

With reluctance I dissent and would find the appealuntimely.

The trial court on March 13, 2001, issued the four-pagememorandum opinion and, as stated by the majority, the opinionstated:

"Based on the foregoing recitation,judgment is entered for the Plaintiff andquiet title is granted Joseph S. Dotson inthe described property.

This Judgment entered at Charleston,Illinois, this 13th day of March, 2001."

The record also shows the motion for sanctions filedMarch 14, 2001, defendant's memorandum in opposition to themotion, and plaintiff's response to defendant's memorandum. OnApril 19, 2001, the trial court, after hearing, denied the motionshowing "By Agreement of Counsel, the [this] docket will stand asdispositive." The record shows no reference by either party atthe April 19 hearing to suggest there was no judgment entered onMarch 13, 2001.

A notice of appeal was filed on March 22, 2001, askingthat this court reverse the judgment entered on March 13, 2001. On July 3, 2001, defendants filed a motion for voluntary dismissal, which was granted by the trial court on July 5, 2001.

Defendants took no further action until September 5,2001, when they filed the motion for entry of written judgment.

The judgment entered on March 13, 2001, did not violateSupreme Court Rule 272 (137 Ill. 2d R. 272), nor does the localcircuit court rule require a different result. As noted above,the notice of appeal recognized that the March 13, 2001, memorandum was a judgment. In addition, the local rule required thatthe proposed judgment be submitted "within 30 days, unlessotherwise directed by the court." 5th Judicial Cir. Ct. R. XI(A)(eff. November 3, 1997). It is clear from a review of thetranscript of the October 11, 2001, hearing, the statements ofthe trial court, and the actions of the parties that the March13, 2001, memorandum opinion was a judgment "directed by thecourt."

The appeal should be dismissed as untimely.