                                 TJo.       83-423
               IN THE SUPREF-IECOURT OF THE STATE OF MONTANA

                                            1984



RICHARD NAPIER and LEONA NAPIER,
                       Plaintiffs and Appellants,
       -vs-
GARY ADKISON and SHERRY ADKISON,
                       Defendants and Respondents.




APPEAL FROM:   District Court of the Nineteenth Judicial District,
               In and for the County of Lincoln,
               The Honorable Robert M. Holter, Judge presiding.


COUNSEL OF RECORD:

    For Appellants:
               Sverdrup   &   Spencer, Libby, Montana

    For Respondents:
               Fennessy, Crocker        &   Allen, Libby, Montana



                                  Submitted on Briefs:          December 22, 1983

                                                     Decided:   April 5, 1984
Mr. Justice John C. Sheehy delivered                 the Opinion of the
Court.


        Richard and Leona Napier appeal from a judgment of the
District Court, Nineteenth Judicial District, Lincoln County,
denying      them   recovery   in     an    action    for   breach   of   a
landlord-tenant agreement.           We affirm in part and reverse in
part the decision of the District Court.
        On   January   10,   1982,    the   Napiers    entered   into     an
agreement with the Adkisons for the rental of a mobile home
near Libby, Montana.         As part of the agreement, the Napiers
agreed to pay $100 on or before the 10th of each month and to
make any necessary repairs on the mobile home.                These terms
were met until June 10, 1982, when the Napiers failed to make
the required rental payment.
      Arrangements were then made for the June payment to be
made on or before June 27, 1982.             The June payment was not
ma-de and the Adkisons made repeated attempts through the end
of June to       contact the Napiers.          During this time, the
Adkisons noticed that the Napiers had left their dogs in the
mobile home and that the dogs were damaging the interior of
the mobile home.       Fina.11~ July 3, 1982, Mrs. Adkison left
                              on
a note on the mobile home notifying the Napiers that she
needed access to the mobile home so that the bank appraiser
could examine the property.          After receiving no response from
the Napiers, on July 13, 1.982, the Adkisons placed a pa.dlock
on   the     front door of the mobile home and contacted the
Napiers' daughter, asking her to have her parents contact
them and notifying her that they would have to evict her
parents if necessa.ry in order to gain access to the mobile
home.
        Upon discovering the padlock on the front door of the
mobile home, the Napiers contacted an attorney and a suit,
which was later dismissed, was filed in Justice Court.    After
receiving the summons and complaint, the Adkisons attempted
to contact the Napiers through the Napiers' daughter.        On
July    22,    1982, shortly after a conversation between the
Adkisons and the Napiers' daughter, Mr. Napier telephoned the
Adkisons and they arranged to meet at the mobile home around
6:00 that evening.      The Adkisons arrived at the mobile home
before the Napiers and discovered that the front door of the
mobile home had been forcibly opened and the mobile home
burglarized.
       On August 19, 1982, the Napiers filed a complaint in
District Court alleging unlawful exclusion from the mobile
home     and    requesting   treble   damages.    The   Adkisons
counterclaimed alleging abandonment and requesting all unpaid
rent.     A nonjury trial. was held on June 15, 1983.       The
District Court entered its findings of fact, conclusions of
law and judgment approximately one month later and held that
neither party was entitled to damages or costs.     The Napiers
filed a notice of appeal on August 19, 1983, and the matter
is now before this Court.
       The sole issue on appeal is whether the findings of
fact, conclusions of law and judgment entered by the District
Court are supported by substantial credible evidence.
       This Court has repeatedly held that it will not disturb
findings of fact and conclusions of law that are based on
substantial credible evidence.        The evidence need not be
flawless.      Evidence may be considered "substantial" which is
inherently weak or conflicts with other evidence presented.
This Court will view the evidence in the light most favorable
to the prevailing party and will not overturn the findings
and conclusions based on such evidence unless there is a
clear preponderance of evidence against them.             Cameron v.
Cameron (1978), 179 Mont. 219, 228, 587 P-2d 939, 945.

     Here, the Napiers       contend      that   substantial evidence
cannot be found to support the following conclusions by the
District Court:
    "1. Plaintiffs failed to pay rent due upon rental
    from Defendants.   Notice of failure to pay such
    payment was duly made and went unheeded by
    Plaintiffs.   Three day notice to quit was orally
    given to a family member of Plaintiffs which was
    the only practical method since Plaintiffs for all
    purposes had abandoned the premises and their
    whereabouts unknown.
    "2. Plaintiffs abandoned the premises about June
    27, 1982; in a.ddition, Plaintiffs committed waste
    thereon by leaving unattended dogs locked in the
    mobile home. Defendants act of placing the padlock
    on the mobile home was a practical but unauthorized
    solution to the problem.
     "3.   There is no causal relationship between the
     unauthorized placing of the padlock by Defendants
     and the burglary committed by unknown third
     persons. "

     The Napiers contend that because the mobile home was not
abandoned   and   the    Adkisons   did    not   follow any   of   the
statutory requirements for terminating the rental agreement,
the Adkisons unlawfully removed or excluded the Napiers from
the mobile home.        Therefore, under section 70-24-411, MCA,
they contend that the Adkisons are liable for the value of
the rental as of July 13, 1982, and the value of the property
stolen from the mobile home.
     The Residential Landlord and Tenant Act as adopted in
Montana provides that "[elxcept in the case of abandonment,
surrender, or as permitted in this chapter, a landlord may
not recover or take possession of the d.welling unit by action
or otherwise   . . .I
                    '      Section 70-24-428, MCA.       A landlord,
then, may take possession of a dwelling unit under only three
circumstances:        1)    abandonment;   2)   surrender; or        3)   as
permitted in the Uniform Landlord and Tenant Act.                   If the
tenant    abandons    the   dwelling unit and        "if the       landlord
accepts the abandonment as a surrender, the rental agreement
is terminated hy the landlord as of the date the landlord has
notice of the abandonment."        Section 70-24-426, MCA.
     Here, the District Court determined that the Napiers
abandoned the premises as of June 27, 1982.           The record shows
that the Napiers did not make the rental payment as agreed on
June 27th; the Napiers' dogs were left unattended in the
mobile home and had damaged the interior of the mobile home;
the Adkisons had repeatedly stopped by the mobile home yet
could find no one present; and, when contacted, the Napiers'
daughter told the Adkisons that she did not know where her
parents were.        This evidence clearly supports the District
Court's conclusion that the mobile home was abandoned by the
Napiers   .
     Under section 70-24-426, MCA, the Adkisons could accept
the abandonment as a surrender and take possession of the
property.      The     rental   agreement    would    then    be    deemed
terminated as of the date that the Adkisons had notice of the
abandonment.     Because the Adkisons proceeded under section
70-24-426, MCA, to terminate the rental agreement they were
not required to give notice to the Napiers.            Therefore, the
issue of whether the Napiers were given proper notice of
termination is irrelevant.
    Although     the Adkisons were         required by       the Uniform
Landlord and Tenant Act to make reasonable attempts to notify
the tenant in writing after an abandonment that all personal
property must be removed from the premises, they were not
responsible for    any   loss    to    the Napiers    resulting    from
storage of the personal property u.nless the loss was caused
by a purposeful or negligent act on behalf of the Adkisons.
Sections 70-24-430 (1) and ( 5 ) , MCA.
     Here, the necessary causal connection is missing.             The
burglary of the mobile home was not a foreseeable consequence
of the Adkisons' act of placing the padlock on the mobile
home door and the Adkisons may not be held liable for any
loss resulting from the burglary.          Thus the Napiers' claim
for damages was properly rejected by the District Court.
     However, section 70-24-427, MCA, provides that "[ilf the
rental agreement is terminated, the landlord has a claim for
possession and    for rent and a separate claim for actual
damages for any breach of the rental agreement."         Because the
rental agreement was properly terminated. by the Adkisons
under section 70-24-426, MCA, they have a valid claim against
the Napiers for rent and damages, contrary to the judgment of
the District Court.
     The   District   Court     is    therefore   affirmed   in   part,
reversed in part and remanded to the District Court with
directions to reinstate the Adkisons' claim for rent and
actual damages for breach of the rental agreement and further
proceedings consonant with this opinion.




We Concur:
