concurring in part and dissenting in part:
I concur in the majority’s affirming the trial court’s finding that a surrender has occurred. However, the trial court’s finding that the surrender occurred on August 29, 1981, is not clearly erroneous, I.R.C.P. 52(a), and should be affirmed. Accordingly, I respectfully dissent to Parts II, III and V of the majority opinion.
The majority correctly states the law of surrender of a leasehold, but then proceeds to cloud the principles of surrender by talking in terms of forfeiture and termination of the lease. Therefore, I feel it necessary to restate the principles of law concerning surrender, as distinguished from the principles concerning forfeiture and termination of a lease.
As the majority correctly states, a surrender is the yielding up of a leasehold or tenancy to the lessor by the lessee. Surrender may occur in one of two ways, either by agreement or by “operation of law.” In any event, it is a bilateral action requiring the mutual consent of the parties to the lease. Kennedy v. Nelson, 76 N.M. 299, 414 P.2d 518 (1966). Termination and forfeiture, on the other hand, is a unilateral act taken by one party to the lease, usually upon default by the other party. Under Idaho law, a surrender is required to be in writing unless it is by operation of law. I.C. § 9-503. Thus, a surrender by agreement must be in writing, whereas surrender by operation of law need not be. Clearly, there is no written agreement in the present case; therefore, any valid surrender must be by “operation of law.”
“A surrender by operation of law occurs when the tenant abandons the premises and the landlord accepts them back for his own account.” Cunningham, Stoebuck & Whitman, Law of Property, § 6.80 (1984) (emphasis added). Surrender by operation of law results from acts undertaken by the parties to the lease which imply mutual consent to the termination. Sanden v. Hanson, 201 N.W.2d 404 (N.D.1972). Consent is inferred from acts which are wholly incompatible with'the continued existence of the landlord-tenant relationship. Hildebrandt v. Newell, 199 Minn. 319, 272 N.W. 257 (1937); Riggs v. Murdock, 10 Ariz.App. 248, 458 P.2d 115 (1969). Such action, initiated by the lessee, usually consists of his abandonment of the premises, i.e., surrender of possession. A lessor undertakes such conduct when he accepts the premises back “for his own account.” A lessee who desires to surrender must secure his landlord’s consent, and if he alleges surrender he must establish unequivocal manifestation of consent on the part of the landlord to termination of the relation of landlord and tenant. Gordon v. Consolidated Sun Ray, Inc., 195 Kan. 341, 404 P.2d 949 (1965).
From the foregoing it is clear that it is the majority’s and not the trial court’s holding which is clearly erroneous as to the date of surrender. The date of May 19, 1981, cannot possibly be the date of surrender since, as of that date, there was no unequivocal manifestation of consent on the part of the lessor-appellant. As the majority correctly points out, mere relinquishment of the premises by the lessee does not necessarily constitute a tendered surrender. Krug Park Amusement Co. v. New York Underwriters Ins. Co., 129 Neb. 239, 261 N.W. 364 (1935). Likewise, mere re-entry by the lessor does not necessarily constitute acceptance of a surrender. Ross v. Smigelski, 42 Wis. 2d 185, 166 N.W.2d 243 (1969) (where landlords gave notice to tenant before they reentered that their objective was to mitigate damages, no acceptance of tenant’s surrender of premises has occurred). Neither of these acts are inconsistent with the landlord-tenant relationship. This is particularly true in this instance where the lease agreement expressly provides for the right of re-entry by the lessor in order to mitigate damages upon *799breach by the lessee.1 In order for appellant’s actions to be construed as acceptance of a surrender, something more must be shown; it must be shown that his actions went so far as to constitute use of the premises for his own account.
The majority, in effect, makes its own finding of fact that the surrender occurred on May 19, 1981, based upon a letter written by the appellant dated May 19, 1981. That letter is at best equivocal in its expression of intent to accept any surrender of the lease. The letter, ante at 791-92, 718 P.2d at 1229-30, expressly states that the lessor was requesting relinquishment of possession in order to mitigate damages:
“In order to mitigate damages, we request your clients immediately surrender possession of the Idaho Falls Ice Arena.
“... Please do not infer the request to surrender possession nor granting of a limited right for your clients to reinstate their position as lessee are a waiver of any right by Gary Olsen. He is waiving no right he may have against your clients. He is only trying to mitigate damages and grant a new right — the right of reinstatement exercizable prior to August 29, 1981.”
Although appellant in that letter speaks of permitting the lessees to “re-establish their position as lessee,” when the letter is read as a whole such language can readily and reasonably be interpreted to mean that the lessees may resume their possession of the premises. As aptly stated by the Alaska Supreme Court in Coffin v. Fowler, 483 P.2d 693 (Alaska 1971), “Absent evidence of intent of lessors to exclude lessees from resuming possession of leased premises following their [relinquishment of possession], lessors’ acceptance of keys to premises ... [does] not signify [surrender] of the lease.”
Substantial evidence exists which supports the trial court’s conclusion that surrender occurred on August 29, 1981. At that time appellant undertook action which arguably was inconsistent with the landlord-tenant relationship. The trial court’s finding that, as of that date, the appellant intended to exclude the lessees from resuming possession of the leased premises, and the lessees acquiesced in that action, is not clearly erroneous and should be affirmed. I.R.C.P. 52(a).
. The lease provides as follows:
"Default. In the event of default, ... lessor shall have the right to reenter the premises.... If lessee shall abandon or vacate the premises, or if lessor shall take possession because of lessee’s default, the rent then due or yet to become due under the terms of this agreement shall be accelerated and become immediately due and payable. All future rent however, shall be discounted to a present value. The discount rate shall be 10%. After taking possession of the leased premises, lessor may relet the premises for such rent and upon such terms as lessor may see fit. Any rent obtained from the reletting, shall be remitted to lessee until lessee has been paid in full all sums lessee has paid to lessor for rent becoming due after lessor took possession." Cf. Windsor Real Estate & Mortgage Co. v. Ruma, 674 S.W.2d 252 (Mo.App.1984) (where lease contains a clause granting landlord the right to reenter and release in event of tenant’s default, such provision constitutes a consent by tenant to reentry and reletting and prevents the landlord’s action from constituting an acceptance of tenant’s surrender).