"FINAL JUDGMENT
"This case has now been submitted for decision following an oral hearing on the merits of the claims asserted by the plaintiffs.
"The plaintiffs, Gary Utz, et al. (hereinafter "Utz"), are all individual residents of the City of Vestavia Hills. They seek a declaratory judgment [holding] that the real property described in this order is subject to a trust under the terms of which it must be owned by the City of Vestavia Hills and used as a park for the residents of Vestavia Hills.
"Utz has also asked this Court to adjudge that the deed executed by the City of Vestavia Hills and conveying the real property to the Vestavia Hills Board of Education is invalid.
"The real property which is the subject of this dispute comprises over thirteen (13) acres of unimproved land, the legal description of which is as follows:
" 'Lots 3 and 4, in Block 3, according to the Survey of Shades Park, as recorded in Map Book 8, Page 22, in the Probate Office of Jefferson County, Alabama. [The reference to Map Book 8, Page 22, is in error. Lots 3 and 4, Block 3, according to the survey of Shades Park, are recorded in Map Book 7, page 74, as referenced in numbered paragraph 3 of the final judgment.]
" 'Also, Lot "C", according to a Resurvey, as recorded in Map Book 61, Page 96, in the Probate Office of Jefferson County, Alabama, of Lots 2, 3 and 4, in Block 2, Shades Park First Addition.
"For convenience, the above described property will hereinafter be referred to as 'Subject Property.'
"Subject Property was conveyed to the City of Vestavia Hills initially by a series of deeds executed by Isadore and Hortense Pizitz. 1
"All of the deeds evidencing the conveyance of the subject property to the City of Vestavia Hills contain the following provision:
" 'The use of the property herein conveyed is restricted to public park and
recreational uses and shall never be used for any other or different purpose.'
"On February 17, 1975, the Mayor and City Council of the City of Vestavia Hills authorized the conveyance of the property by the City of Vestavia Hills to the Board of Education of Vestavia Hills by adopting Resolution Number 416 providing in part as follows:
" '1. That in order to effect a change in the record title of the property heretofore given by the Pizitz Family to the City and through the City to the Board of Education for public school purposes, the Mayor is hereby authorized to execute a deed for and on behalf of the City conveying record title of said real estate to the Board of Education of Vestavia Hills and to deliver the same to the said Board of Education for recording in the Probate Office of Jefferson County, Alabama.'
"On that same day, February 17, 1975, the Mayor of Vestavia Hills executed a deed conveying Subject Property and certain other property given to the City of Vestavia Hills by the Pizitz family to the Board of Education of Vestavia Hills. That deed is recorded in Real Volume 1236, Page 743.
"During the period from September through November, 1976, Isadore and Hortense Pizitz, Marcia and Arthur Pruce, and John Jacobson for himself and as the devisee under the last will of his wife, Ann Jacobson, who had since died, executed instruments entitled 'Release from Restrictions'. Each of the instruments recited that the Subject Property was then owned by the Board of Education of Vestavia Hills. Each also recited:
" 'Whereas, there has been a complete change in the neighborhood and the surrounding area of the hereinafter described property and the present owner and party placing said restrictive covenants on said property desire to completely release the hereinafter described property from the said restrictive covenants hereinabove described.'
"The instrument then recited that each of the persons executing the same released, waived and cancelled the restrictions previously imposed by that person in deeds relating to the Subject Property.
"I. WHETHER THE USE OF THE SUBJECT PROPERTY REMAINS RESTRICTED TO PARK AND RECREATIONAL USES.
"Utz contends that the Subject Property is and must remain a public park and recreation area as a matter of law. Utz says that there was a common law dedication of the Subject Property. He says that the Subject Property was conveyed to the City of Vestavia Hills restricted to use as a public park and recreation area and that the dedication was accepted or made complete of the Subject Property as a park and recreation area when the Subject Property was subsequently used by members of the public for such purposes.
"According to Utz, once the offer of dedication had been accepted by the public, it was irrevocable and the Pizitz family was without authority to release the Subject Property from the restriction which they had placed on the same.
"Utz also says alternatively that if the common law dedication had not been completed by public use of the property, it was still complete as to abutting owners who bought residential lots and relied on the restrictions on the use of the Subject Property to that of a park and recreation area, and that the restriction on the use of the property is therefore enforceable by them.
"Utz also argues that, in any event, the conveyance of the Subject Property by the City of Vestavia Hills to the Board of Education of the City of Vestavia Hills is invalid because the City Council in adopting Resolution 416 authorizing the conveyance failed to make the determination required by Section 11-47-20, Ala.Code 1975, that the Subject Property was surplus or excess property.
"It is the position of both the City of Vestavia Hills ('Vestavia') and the Board of Education of the City of Vestavia Hills ('Board') that the act of dedication of the property by the original grantors was revoked
by members of the Pizitz family before the acceptance of the dedication either by Vestavia or by members of the public.
"Vestavia and the Board say that Utz failed to prove that the Subject Property was used as a park between 1963 and 1976; that Vestavia never accepted Subject Property as dedicated for use as a park or recreation area either by the adoption of a resolution or ordinance, or by any conduct on its part.
"Vestavia and the Board also argue that Utz and the other persons named as plaintiffs have no standing as abutting property owners to question the use of Subject Property. They say that Utz and the other property owners are not in the same subdivision as the subject property and are, therefore, not in privity with Vestavia or the Board [and] cannot enforce the restriction in the Pizitz deeds.
"Vestavia and the Board also argue that Utz is barred by the statute of limitations set out in Section 6-2-31; and that they have no standing to challenge the instruments executed by the Pizitz family releasing the Subject Property from the restrictions on its use.
"With respect to the conveyance by Vestavia to the Board, Vestavia and the Board say that Section 11-47-20 is not applicable in this case. They say that Vestavia should not be required to determine that the Subject Property was not needed for public or municipal purposes when the conveyance by Vestavia to the Board was for a public purpose.
"This Court concludes that Utz and the other property owners named as plaintiffs in this action do have standing to ask for a declaratory judgment on the question whether the subject property may now be used only for park and recreational purposes. Douglass v. City Council of Montgomery, 118 Ala., 599, 24 So. 745 (1898). In that case, the plaintiff, James Douglass, brought suit as a resident citizen and a taxpayer of the City of Montgomery. He sought to have declared void two ordinances adopted by Montgomery's city council granting an area known as Gilmer Park to one railroad company, and granting to the other the right to lay a railroad track across Gilmer Park. Reversing the decision of the trial court, the Supreme Court held that Douglass had standing to challenge the action of the City Council even though he was not an abutting property owner. The Supreme Court stated in part:
" 'In these days of rapid and cheap transit in cities and towns, brought about by the applications of steam and electricity, it would seem that every resident property holder of the municipality occupies, in a sense, the position of an adjacent owner to its public parks, dedicated to public use, and is clothed with all the valuable rights and interest in such dedications, as the one whose property...
