" Shield's Heirs v. Batts (1830), 5 J.J.Marsh. (28 Ky.) 12. She has no power or right to convey or assign her dower to a third party before it is allotted to her, and if she attempts to do so no interest passes to the grantee under the deed. Burk v. Moore (1925), 209 Ky. 24, 272 S.W. 38; Hurt's Guardian v. Crawford Coal Corporation (1928), 222 Ky. 504, 1 S.W.2d 955. Even a simple lease executed by her will be invalid. Commonwealth v. Geary (1953) Ky., 254 S.W.2d 477. And if that lease is one in which she purports to lease or transfer the oil underlying the land, she is guilty of waste. Lemaster v. Hudson (1926), 214 Ky. 467, 283 S.W. 439. The only power or right a widow has with respect to her dowable interest in real estate prior to the allotment and assignment to her of dower proper therein is to release her right of dower to the owner of the fee, an heir or other party in privity with the decedent.

In Com., Dept. of Highways v. Litteral, Ky., 319 S.W.2d 458, this court recognized the principle of estoppel by right of way deed as it pertains to claims for "consequential injury" resulting from construction of the road. To the same effect are Meyer v. Jefferson County, Ky., 305 S.W.2d 536, and Com., Dept. of Highways v. Geary, Ky., 254 S.W.2d 477. Paducah Box and Basket Co. v. Com., Dept. of Highways, Ky., 344 S.W.2d 608, presented a problem more nearly analogous to the case at bar than the decisions just cited.

A right-of-way deed carries with it the right to use the land deeded in such manner as is reasonably necessary in the construction and maintenance of the highway. Commonwealth v. Geary, Ky., 254 S.W.2d 477; Cartee, et al. v. Commonwealth of Kentucky, Department of Highways, Ky., 374 S.W.2d 860, decided January 24, 1964. Further, unless the deed so provides, the Commonwealth is not obligated to build according to its original plans or to build at all.

We are concerned here only with the question of whether the facts in this case constitute "a condemnation suit in reverse," or "a retroactive condemnation of land." We are of opinion that the facts of this case compel the application of the rule that compensation must be paid for the taking under section 242 of the Constitution. Commonwealth v. Kelly, 314 Ky. 581, 236 S.W.2d 695, Commonwealth v. Geary, Ky., 254 S.W.2d 477, and City of Newport v. Rosing, Ky., 319 S.W.2d 852, 853. We believe the latter case is exactly in point.

The petition was based on negligent construction of culverts. In Commonwealth v. Geary, Ky., 254 S.W.2d 477, it was again stated that such an action which is in the nature of a trespass could be maintained although we observed that the court had traveled a somewhat circuitous route in order to justify recovery on the theory that the property had been taken without just compensation. The distinction made in the last quotation above seems to lack a foundation because whenever property is physically damaged, it is taken to that extent and the circuitous route which we have traveled seems to lead us inevitably to the rule that whenever any property is damaged by a sovereign, whether it is the result of common acts of negligence or is related to the exercise of eminent domain or of police power, damages must be paid by the sovereign.

See also Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394. It was written in Com. v. Geary, Ky., 254 S.W.2d 477, at page 479: "The right-of-way deed carries with it the right in the Department to use the land in such manner as is reasonably necessary in the construction and maintenance of the highway and the consideration far the deed covers such incidental damages as might be incurred in the proper use of the right-of-way." The instant case is stronger than the Geary case because here the deed recites the Road was to be constructed according to the plans and specifications on file in the office of the Department, and the stipulation in the record states the Road was so constructed.