If this was due to the mere negligent operation of the ditch system, it is not within the scope of liability as a taking or damaging for a public use under section 14. If, on the other hand, the obstruction of the ditch was in some way part of the plan of maintenance or construction, then liability would attach because the means of carrying out the plan of construction and maintenance are immaterial. (See Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123 [ 119 P.2d 717]; Commonwealth v. Kelley, 314 Ky. 581 [ 236 S.W.2d 695]; Letcher County v. Hogg, 209 Ky. 182 [ 272 S.W. 423]; Stith v. Louisville N.R. Co., 109 Ky. 168 [58 S.W. 600].) [19] The allegations in the complaint in the present case make the plaintiffs' theory clear.

Eventually it reached such a depth that it became necessary to remove it. The claimed damages were based upon the injury to the lake, including the reasonable cost of cleaning it out. The Commonwealth's first contention is that this work was done by an independent contractor and consequently it is not liable. Appellant has apparently overlooked the line of cases which allow recovery against the Commonwealth or a political subdivision on the ground that injury to land constitutes a taking for which compensation must be paid. Adkins v. Harlan County, 259 Ky. 400, 82 S.W.2d 425; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695; Keck v. Hafley, Ky., 237 S.W.2d 527. See also Oberst and Lewis, "Claims Against the State of Kentucky — Reverse Eminent Domain", 42 Kentucky Law Journal 163. The Commonwealth is responsible for work done in accordance With its plans and specifications, regardless of who performs it. The possible liability of the independent contractor doing the work is based on another ground.

MILLIKEN, Justice. Shortly after the filing of this appeal, our opinion in Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, was rendered and, while not decisive of the case at bar, it nevertheless affords the criteria for the determination of this appeal. The question is whether the State Highway Department, an arm of State sovereignty, is immune from an action sounding in tort where damage of such a nature has been inflicted upon real estate by the negligent acts of the Department as to amount, in all practical effect, to a taking of property for public use without just compensation therefor. Mrs. Oddie Corey is the owner of a farm of fertile bottom land in Knox County through which Bull Creek wends its way to its junction with Goose Creek. Knox County paid Mrs. Corey $500 for a right of way, and the defendant, Department of Highways, constructed a road across the land and bridged Bull Creek with a large concrete culvert of two sections.

Appellants next contend that the injury to appellee's property did not constitute a taking. In a recent opinion, Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, we decided the very question here raised, and held: "* * * an interference with the legally protected use to which land has been dedicated, which destroys that use or places a substantial and additional burden on the landowner to maintain that use, is a 'taking' of his property." The facts in that case are most similar to those shown here.

Yanero v. Davis, 65 S.W.3d 510, 523-24 (Ky. 2001). See also Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, 696 (1951) ("Immunity from suit has always been an attribute of state sovereignty."). KRS 44.073(2) ("The Board of Claims shall have primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus, or agencies."); see also Collins v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125 (Ky. 1999), construing KRS 44.073(2) ("This provision clearly establishes that any negligence claims against the Commonwealth or its subdivisions must be for the negligent performance of `ministerial acts.' By implication, the negligent performance of non-ministerial, i.e., discretionary, acts cannot be a basis for recovery under the Act.").

Yanero v. Davis. 65 S.W.3d 510, 523-24 (Ky. 2001). See alsoCommonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, 696 (1951) ("Immunity from suit has always been an attribute of state sovereignty."). KRS 44.073(2) ("The Board of Claims shall have primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus, or agencies."); see alsoCollins v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet. 10 S.W.3d 122, 125 (Ky. 1999), construing KRS 44.073(2) ("This provision clearly establishes that any negligence claims against the Commonwealth or its subdivisions must be for the negligent performance of `ministerial acts.' By implication, the negligent performance of non-ministerial, i.e., discretionary, acts cannot be a basis for recovery under the Act.").

Rather, sovereign immunity is a common law concept recognized as an inherent attribute of the state. Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, 696 (1951). Thus, contrary to assertions sometimes found in our case law, Sections 230 and 231 of our Constitution are not the source of sovereign immunity in Kentucky, but are provisions that permit the General Assembly to waive the Commonwealth's inherent immunity either by direct appropriation of money from the state treasury (Section 230) and/or by specifying where and in what manner the Commonwealth may be sued (Section 231).

A portion of the act designated that: Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951) ". . . [e]stablishment of these boundaries shall be accomplished in such a way that it includes at least the visual horizon from the stream, but not more than two thousand five hundred (2,500) feet from the center of the stream.

Under these and similar constitutional provisions, courts have differed as to whether common-law actions may be brought against the state where express consent has not been given. The following indicate their differing viewpoints: Rose v. State, 19 Cal.2d 713, 123 P.2d 505; Tomasek v. State, 196 Or. 120, 248 P.2d 703; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695; Sale v. State Highway and Public Works Commission, 242 N.C. 612, 89 S.E.2d 290; State v. Leeson, 84 Ariz. 44, 323 P.2d 692; Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666; Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; State ex rel. Oklahoma State Highway Comm. v. Alford, Okla., 347 P.2d 215; Weir v. Palm Beach County, Fla., 85 So.2d 865. The conflict is pointed out and the cases with constitutional provisions are reviewed in Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157.

As the circumstances are such that no one will buy lots, the property of the appellant has just as surely been taken as if it were condemned and in the possession of the Airport. I shall not attempt to prolong this opinion by discussing authorities in support of this position. They are: Morrison v. Clackamas County, 141 Or. 564, 18 P.2d 814, 816; In re Forsstrom et ux., 44 Ariz. 472, 38 P.2d 878, 882; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695, 697; Gasque v. Town of Conway, 194 S.C. 15, 8 S.E.2d 871, 873-874; Stockdale v. Rio Grande Western Ry. Co., 28 Utah 201, 77 P. 849, 852-853; Nalon v. Sioux City, 216 Iowa 1041, 250 N.W. 166.