NO. 07-04-0567-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A SEPTEMBER 13, 2005

______________________________ BARRY J. MILLS, APPELLANT

V. SHARON D. SUSTAITA, ET AL., APPELLEE

_________________________________ FROM THE CO UNTY COURT OF W ILBARG ER COUNTY; NO. 4390; HON ORABLE GARY B. STREIT, JUD GE

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION BarryJ. Mills appeals the W ilbarger County Court’s judgment dismissing his forcible entry and det ainer

suit for w ant of j urisd icti on. We affirm. Mills and appellees, Shar on an d Gab riel S usta ita, own an d occ upy two properties with an adjoining boundary. The two properties were separated by a fence. A boundary dispute regarding the location of thefence arose between the parties in May of 2004. Mills alleges, in his peti tion, that the Sustaitas r emoved the fence they c laim encroached upon their proper

ty and damaged improvements made to the disputed property.2

Mills filed a complaint fo r forcible entryand detainer i n the justice court of Wilbarger County asserting his right to immediate possession of the disputed proper ty. The Sustai tas filed a plea to the j urisdicti on asserting that the justi ce court lac ked subject matte r jurisdict ion over Mills’s claim because it was an attempt to have the court determin e title to the property. The justice court dismissed Mills’s suit and he appeal ed that ruling to the county court. After a hearing, the county court also dism issed Mil ls’s suit for want of jurisdiction. From this dismissal, Mills appeals.
Before we can address the mer its of Mill s’s appeal, w e must first deter mine whether this court has jurisdiction over the appeal. See H.E. Butt Grocery Co. v. Bay, Inc. , 808 S.W.2d 678, 679 (Tex.App.–Co rpus Chris ti 1991, wr it denied). Appellate cour t jurisdi ction over the mer its of

a case exte nds no further than that of the court from w hich the appeal is taken. See Pear son v. State , 159 Tex. 66, 315 S.W.2d 935, 938 (1958). If the trial court lacked jurisdic

tion, an appella te court only has jurisd iction to set any j udgment aside and dismiss the cause. See City of Gar land v. Louton , 691 S.W.2d 603, 605 (Tex. 1985).
Justice cour

ts ha ve jurisdic

tion over forcible entry and detainer sui ts relating to property located in the precinct of the j ustice court

. See T EX . P ROP
. C ODE A NN . § 24.004 (Vernon 2000). However, justice cou rts and county courts on appeal are expre ssly deni ed jurisdict ion to adjudicate ti tle to land. T EX . G OV ’ T C ODE A NN . § 27.031(b)(4) (Vernon 2004); Rice v. Pinney , 51 S.W.3d 705, 708-09 (Tex. App.–Dallas 2001, no pet.). The sole issue in a forcible entr

y and detainer

suit is theright to immediate possess ion of the property and neither the justice court nor county court may d etermine titl e to the property. See T EX . R.1 Adverse possession is an actual and visible appro priation of re al pro pert y,

commenced and continued unde r a claim of right that is inconsi stent wit h and is hosti le to the claim of another

person. 3 C IV . P. 746; Mitchell v. Armstr ong Capital Corp. , 911 S.W.2d 169, 171 (Tex.A pp.–Houston [1 st Dist.] 1995, writ denied).
To prevail in a forcible entry and detainer case, the plaintiff must pres ent sufficient evidence of ownershipt o demonstrate a super ior rig ht to immediate poss ession. See Gibson v. Dy negy Mi dstream Servs., L.P. , 138 S.W.3d 518, 522 (Tex.App.–For t Worth 2004, no pet.); Rice , 51 S.W.3d at 709. Justice cour ts may adjudicate poss ession issue s when related to ti tle of real prop erty tang entially or collater

ally. Gibson , 138 S.W.3d at 522. However, if the question of title is so in tegrally lin ked to the iss ue of possession tha t the right to possession cannot be determined w ithout first determining ti tle, then the justice and county courts lac k jurisdi ction over the matter. Id . In any event , if it becomes appar ent that
a genuine fact is sue regarding title ex ists, the courts do not have juri sdiction. Mitchell , 911 S.W.2d at 171.
In his plead ing, Mills’ s only cl aim of ownershi p over the di sputed property is that the fence had enclosed the disputed prop erty as a part of his property for a period in excess of ten years. Review of the record makes clear t hat Mills ’s evidence of ownershi p over the disputed prope rty is b ased on a claim that he acquired title to the property by adverse possession. See generallyT EX . C IV . P RAC
. & R EM . C ODE A NN . § 16.021(1) (Vernon 2002 ); King Ranch, Inc. v . Chapman , 118 S.W .3d 742, 756 (Tex. 2003 ). 1 Mills’ s claim that hehas
a superior r ight to immedi ate possession of the disputed property based on acquisit ion of4

title by adverse possession so integrallylinks is sues of title and possession that the justice court could not hav e decide d the for cible entry and detainer sui t without first decidin g whether Mills ha d obtained title. See Gibson , 138 S.W.3d at 523-24; Gentry v . Marburg er , 596 S.W.2d 201, 203 (Tex.App–Houston [1 st Dist.] 1980, writ ref’d n.r.e.).
Accordin gly, w e conclude that t he justice and county cour ts properly

granted the Sustaitas’ pl ea to the juri sdiction. We affirm the judgment of the county cour t.

Mackey K. Hancock Justice